J. Reddy, C.J.
1. When this appeal came up before Basi Reddy, J., he referred the matter to a Bench, as in important question relating to Sishya Sancharam fell for consideration. The Bench, consisting of himself and Sharfuddin Ahmed, J., having regard to its importance, referred to following two questions to a Full Bench, namely.
1. Is the avocation of Sishya Sancharam an office or property and is it heritable and partible Is it a justiciable right ?
2. Do earnings from Sishya Sancharam constitute joint family property ?
2. At the very outset it appeared to us and the learned advocates for the appellants and the respondent agreed, that as the several aspects of the matter which fall for consideration depend on evidence relating to the custom and usage in regard to Sishya Sancharam, the whole case will have to be heard, and we accordingly permitted the learned advocate to argue the entire appeal.
3. The respondent, who is the widow of one late Butchayyavarlu, son of the 1st defendant, Tiruvenkatachariar, filed the suit against her father-in-law, his son and his son's son, who are respectively appellants 1, 2 and 3 herein, for partition of the joint family immovable properties in the plaint A schedule, the utensils etc., in B-schedule and the amount from money lending business specified in C-schedule, on the allegation that the members of the joint family who are religious Gurus of Vaishnavites, have the hereditary, occupation of Sishya Sanchram, from which they obtain or acquire cash, silverware, jewels and other valuables from Sishyas according to their status in token of having received Upadesam from the Guru which will be done after Samasrayanam, when Chakrankitas (i.e., wheel and conch) are impressed on the shoulders of the Sishyas. This is come as and when it is received, according to the plaintiff is used for the benefit of the members of the family and is joint family property. The 1st defendant and the plaintiff's husband, it is stated, used to go on Sishys Sancharam. The plaintiff also, after her marriage, used to accompany them. The 2nd defendant appellant is a violin artist in the All India Radio, Vijayawada. The plaintiff averred that she was also given some Guru Dakshina by the Sishyas and that the annual income of the family from Sishya Sancharam was about Rs. 5000, and it was with these amounts that item I of the plaint A Schedule, viz., a house at Vijayawada, the market value of which is Rs. 15,000 was purchased. Item 2 of A Schedule which is a Kottu the market value of which is Rs. 6,000 was given by a Sishya. The 1st defendant was also sending articles and moneys received on Sishya Sancharam to Vijayawada and when they were accumulated to a large extent, he was sending the moneys to his brother-law, Keshvacharulu of Poduru village in West Godavari District, for being invested in some money lending business. All these properties have been shown in schedules A to C. In or about October, 1954, the plaintiff's husband suffered from typhoid fever and died on 27-10-1954 at Vijayawada while living jointly with the 1st defendant. Thereafter the plaintiff gave birth to a posthumous child on 29-5-1955, who however, died on 17-6-1956. Apart from her being entitled to claim a share in the properties not only as the heir of her husband, but also of her son, she is also entitled to her Sari Samans, a pair of silk clothes, tow silver vessels and a gold ring which were left in the 1st defendant's house but she started that she would file a separate suit for recovery of the same.
4. The 1st defendant denied that the joint family has any hereditary occupation of Sishya Sancharam or that the income derived from it constitutes joint family property or that it is heritable property. According to him, the Sishya Sancharam which he was undertaking, was not in the capacity of father-manager of a Hindu joint family nor is it true to say that he was getting an income of Rs. 5000 by it. He also denied that he was doing any money lending business. According to him, his father and grandfather had disciples of their own and they had property, which was given away by his father to him and his brothers. Subsequently, he and is brother became divided. He had only 2 acres of land and a small Sishya Sancharam. The income of the land was only Rs. 75 per year. The 1st dependent underwent training and obtained proficiency in Sastras, Agamas and religious affairs, and is respected not only by Sri Vaishnava community but also by general public. It was due to his learning and proficiency in religious matters that many people became his Sishyas and he was honoured by them which presents like silverware, clothes and Guru Dakshina, which was his separate self-acquired property. He also stated that the 2nd defendant is living on his own earnings as a violinist, which is his self acquisition. It was averred that before his first son, viz., the plaintiff's husband died, the 1st defendant had effected division in status between himself and his two sons, and as there was no joint property, either moveable or immovable, he gave his self-earned silverware, copper vessels and clothes to his two sons. In so far as the house is concerned though it was purchased before the partition, it was with his own funds, of which Rs. 1000 were contributed by a Sishya, and the balance by sale of his wife's jewellery, and borrowings from the 2nd defendant's wife and others, and hence it is his separate property in which his sons have no interest. The house at Nellore also is his separate property as it belongs to him and his brothers. He sold the 2 acres of land for meeting the family expenses.
5. The 2nd defendant in the main adopted the written statement of his father and raised similar contentions. He claimed that the insurance policies on his life as well as the amount he had lent on a mortgage, and some silverware are his self-acquired properties.
6. A rejoinder was filed by the plaintiff, and in reply, additional written statements were filed by the 1st and 2 defendants.
7. As many as 9 issues were framed in the beginning and subsequently another 6 additional issues were framed on 13-10-1961. The learned Additional Subordinate Judge, held that the earnings from Sishya Sancharam constitute joint family property, that the occupation of Sishya Sancharam is heritable and partible, that there is nothing to show that is not justiciable, that Sishya Sancharam itself was treated, by the conduct of the family and the custom, as joint family property liable to be partitioned, and that accordingly the plaintiff is entitled to a 1/3rd share of Sishya Sancharam as evidenced by Ex. B-1 book; that the earning from Sishya Sancharam were blended with joint family property and thrown into the common stock, and therefore, it became joint family property that there was no partition effected between the 1st defendant and his sons as alleged by him that the plaintiff's share will have to be determined on the date of the demand for partition and not on the date of the death of her husband that the A schedule properties are joint family properties that the money lent under Ex. B-141 mortgage was money of joint family received from Keshavacharyulu, the brother-in-law of the 1st defendant, that the moveable inventories by the commissioner are also to be divided as they are also joint family properties, and that there was no self-acquired property of the 1st defendant. He, however, held that the insurance policies on the life of the 2nd defendant are the self-acquired properties of the 2nd defendant and not joint family property, that there were no jewels of the 2nd defendant's wife, and that the income of the 2nd defendant cannot be treated as joint family property as under the Hindu Gains of the Learning Act, it is his separate property. But since the 2nd defendant was also drawing moneys from Keshavacharyulu with whom the finances of the joint family were deposited, the 2nd defendant has to render account for all such moneys drawn. In so far as C schedule is concerned, as it is established that large funds have been secreted so as to remove them from the clutches of the other coparceners, the joint family manager has to render an account, and as the 1st and 2 defendants were both withdrawing the moneys, they are both liable to render an account. He further held that profits from the various properties can be ascertained in final decree proceedings.
8. In the result, the Addl. Subordinate Judge passed a preliminary decree for a 1/3 rd share in all the properties which were held to be joint family properties both moveable and immovable, and for an account to be rendered by defendants 1 and 2 for all the moneys realised from Sishya Sancharam and by sale of joint family properties at Chodimella and Pochampalli and payment of 1/3rd share to the plaintiff. He also decreed division of Sishya Sancharam as evidenced by Ex. B-1 and allotment of a one-third share to the plaintiff.
9. At the very outset it may be stated that the evidence in this case does not disclose that the plaintiff has made out a case that there is any money belonging to the family of D-1, (D. W. 3) with Keshayacharyulu the brother-in-law of the 1st defendant, or that any such amounts are in the hands of 1st and 2nd defendants. D. W. 3 in his evidence stated 'I do not have any money of his (1st defendant). I have rendered an account to him and delivered the amounts to him. I do not have Rs. 10,000 or any portion of it now.' In cross-examination it was elicited that the 1st defendant and the 2nd defendant were drawing out moneys from him. The 1st defendant, examined as D. W. 6, also, while admitting that he used to keep his money with D. W. 3, both before and after he had a house, stated that he was using it from time to time and that there was nothing with him now. There was nothing in the cross-examination to cast any doubt on this statement nor to show that there was any money secreted or hidden by him or that he has committed any fraud or malversation of amounts. The 2nd defendant examined as D. W. 7 stated that he was keeping his own money with his maternal uncle till 1947, when he opened a Bank account, and that thereafter, there was no money of his with his maternal uncle, who is also his father-in-law. In so far as money advanced by him on the mortgage, Ex. B-141, is concerned, he stated that his money which was with Kesavacharyulu was sent to him at his request for lending on the mortgage, and he was frank enough to admit that there is only his oral evidence to prove that it is his money. when he was asked why, when he had money in the bank from which he could advance the amount on the mortgage Ex. B-141, he asked his maternal uncle for the money, he stated that he utilised the occasion to avoid any awkward questions by his father-in-law as to the reasons for his asking the money back. He said 'My intention was to collect the money from Kesavachari on this ground. Otherwise there would be no occasion to collect the money from him. He might ask me why I require the money if I wanted it. So I have to take it by showing some cause.' He stated that the radio which was in the inventory of the Commissioner, was purchased by him in 1950 or 1952. On this evidence we have no hesitation in holding that it is not established that money is still with Kesavacharyulu or that the same has not been withdrawn from time to time or subsequently after the whole amount was paid or that it was not utilised for family necessities.
10. As far as the liabilities of the 1st defendant to account in concerned, there is absolutely no allegation or proof of fraud or malversation or misappropriation on his part. As against the 2nd defendant who is only a junior member of the coparcenary the decree making him also liable to account is obviously unsustainable. All that a person asking for partition is entitled to is for an account of the family property as it exists at the time he demands partition. The learned advocate for the respondent did not controvert this position. So, that portion of the decree relating to C schedule properties or for an account of the amounts either by the 1st or the 2nd defendants or in respect of the mortgage effected by 2nd defendant as being effected from out of the joint family property, cannot be sustained.
11. In so far as immovable properties are concerned, there is no doubt that the Kottu in Nellore is joint family property, it having been given to the first defendant's father by a Sishya. After the father's death the first defendant and his two brothers became entitled to it. Whether the property acquired by Sishya Sancharam is separate property or joint family property, since the 1st defendant and his sons obtained the same from their father, it is the ancestral property in their hands and it is without doubt joint family property. While this is so, the learned Subordinate Judge is wrong in directing accounts of the income from a date anterior to the date of the suit, and it is frankly conceded by Mr. Suryanarayana Rao for the respondent, that she will be entitled to the mesne profits in respect of the 1/3rd share of the family in the Kottu only from the date of the suit. This will have to be determined in final decree proceedings.
12. In so far as the house at Vijayawada is concerned, the appellants contend strenuously that it was purchased from money borrowed partly from the 2nd defendant's wife, partly by sale of jewellery of 1st defendant's wife and partly by an amount given by one Veerayya, a Sishya, to the 1st defendant for his Ramayana Kalakshepam. The sum of Rs. 1000 alleged to have been paid by Veerayya was entered at page 84 of the 1st defendant's book (Ex. B-35) The entry at page 154 in the same account book relates to the sale of jewellery and also shows borrowings of Rs. 600 from Keshavacharyulu. According to D. W. 6, these entries were written by the plaintiff's husband. The plaintiff's husband was writing the account from page 127, Veerayya himself wrote the entry Ex. B-35 and also signed it. So far as Ex. B-36 is concerned, he says that it is in his own hand. Veerayya, according to the 1st defendant had a daughter and son-in-law. He had Rs. 5000 cash. He gave all his property to them, Rs. 1000 to his (the 1st defendant) and the balance to the Bhadrachalam temple. Though he is alive, he was not examined as a witness. The 1st defendant also admits that while it was usually the course to take the signatures of Sishyas in his books, out of enthusiasm Veerayya had himself wrote it. He denied that Veerayya had no capacity to pay Rs. 1000. The learned Subordinate Judge has held on this evidence that there is nothing to show that the 1st defendant got Rs. 1000 from Veerayya. To prove that Veerayya had no capacity to pay that money, the plaintiff produced a letter Ex. B-66, a post card written by Veerayya, at the time of the death of the plaintiff's husband, to the 1st defendant. In it he had written that he was sorry to hear of the death but that he could not come to offer his condolences, because he had no money. This was sought to be explained by the 1st defendant by saying that Veerayya had given sway all his properties. It is inconceivable that any person would give his entire property without keeping anything for himself, particularly when he was a daughter and son-in-law, unless he had decided to become a Sanyasi. The learned Judge also carefully went through the account books and considered the defects therein, and in our view, his finding that the Defendant 1 has not established that the property is his self-acquired property cannot be controverted.
13. A petition for admission of additional evidence is filed, seeking to adduce in evidence a letter said to have been discovered, which is alleged to have been written by D. W. 2 to the 1st defendant on 15-1-1945 relating to Rs. 1000 given by Veerayya. The very circumstance in which the letter was said to have been discovered does not inspire confidence. It is stated that the letter was found among papers which were moth-eaten. There seems to be no evidence in that regard. In any case, D. W. 2 and 6, both the receiver and the writer, though they have been examined, yet neither of them mentioned about this letter. We do not find any justification to admit this letter in evidence at this stage. We accordingly reject the petition.
14. On the other hand, the evidence seems to indicate that the property must have been purchased out of the sale proceeds of the lands which were admittedly family property having belonged to the father of the first defendant. The house was purchased in the year Virodhi i.e., 1949 while the lands were sold even according to the first defendant in Tarana i.e., 1944. It is now sought to be stated by D. Ws. 4 and 7 that the date of sale of lands in Tarana is a mistake for 1951 or 1952. But no sale-deed was produced nor the vendee examined.
15. There is further evidence that the 1st defendant treated the earnings from Sishya Sancharam and all the properties as joint family properties, as evidenced by Exs. A-1 and A-3, Ex. A-1 is a letter written by the 1st defendant to the plaintiff's father, categorically stating that all the amounts received from Sishya sancharam do not belong to any individual separately but are for the benefit and use of the family that this was the usage from the time of his forefathers and that was how it was being treated. Similarly in Ex. A-3 another letter written by the 1st defendant to plaintiff's father, he stated, referring to the plaintiff's husband, that it would be satisfactory if his tiruvadyayamu, i.e., funeral ceremonies, are performed in his own house at the place where he had performed the Pooja to his deity. Referring to this, D. W. 6 himself stated that if the plaintiff's husband was alive, the house would be his own. Even according to D. W. 7, after the partition alleged to have been effected between the 1st defendant and his sons, the northern half was given to him (D. W. 7) and he has been living in the northern portion. While no doubt Ex. A-3 may not by itself be conclusive, this read with Ex. A-1 and the evidence of D. Ws. 6 and 7 show that the house was treated as joint family property, either on the ground that the amount utilised in purchasing it came from the proceeds of sale of lands or on the ground that it was treated as joint family property. The house is said to have been purchased in the year Virodhi, i.e., 1949, while the lands were said to have been sole in Tarana, (1944). Now it is sought to be stated by D. Ws. 4 and 7 that the date of the sale of lands in Tarana is a mistake for 1951 or 1952. But no sale deed was produced nor the vendor examined. In so far as the statement in Ex. A-1 is concerned, Sri Veerabhadrayya contends that it was written to meet a certain contingency and cannot be taken as an admission or evidence of blending of treatment of the property. In support of this contention, he has referred to a decision of the Supreme Court in Rukmabai v. Laxminarayan, : 2SCR253 , where Subba Rao, J., (as he then was), adopted the following observations of their Lordships of the Privy Council in Venkatapathi Raju v. Venkatanarasinha Raju, AIR 1936 PC 264;
'It sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position and it is not their Statements, but their relations with the estate, which should be taken into consideration in determining the issue'.
In our view, this statement must be construed in the context of the facts and circumstances of the particular case. In the Privy Council case, their Lordships had to consider whether there was separation of the joint family in the lifetime of Venkataraghavaraju. It was held that the statement made subsequently, that there was a division in status or that the property was being held as tenants-in-common by the three brothers, was a false statement made in connection with obtaining of a licence for selling liquor, and that the observations were made in explaining why such false statements were made. In the Supreme Court case also, interested statements were made and sham documents were brought into existence to establish that there was a prior partition, and on the basis of it, subsequently a trust was created. This was held by High Court, reversing the decision of the trial Court to have been done by members of the family in pursuance of a scheme to defraud the creditors. This judgment was affirmed by the Supreme Court. A similar situation does not arise in this case. A reading of the letter Ex. A-1 would show that the plaintiff was alleged to be stating that the amounts given to her and her husband when she went on Sishya Sancharam were theirs, and in order to contest this, the 1st defendant in the letter had made the statement referred to above. It may be noted that in fact that was the occasion when he should have stated that the properties which were given by Sishyas in Sishya Sancharam belong to him exclusively. At any rate, this is a statement contrary to his interest and is binding upon him. The first defendant has not attempted to give any explanation for the statement. On the other hand, his evidence also is consistent with this statement in Ex. A-1. In these circumstances, we hold that the house at Vijayawada is joint family property.
16. In so far as B Schedule is concerned, it consists of certain utensils, mosquito net, bed sheets, wooden toilet box etc. There is no evidence to establish that the items in B Schedule are in existence, or if any of the articles are there, they belong to the joint family and not to the individual members of the family. Reliance is placed by Sri Suryanarayana on the inventory made by the Commissioner, from which it would appear that the plaintiff's sari samans were found in the house. But there again the plaintiff has not stated anything in respect of these items or specified what property belongs to her. In any case, in her plaint itself, she stated that she was going to file a separate suit for the same inasmuch as the prayer was limited only to B Schedule property which, as we have said, has not been established on the evidence to be in existence or proved to belong to the joint family, this prayer also is negatived.
17. In the plaint there was no claim for division of Sishya Sancharam. The suit related only to specific properties mentioned in the schedule. Nevertheless the Court below gave a decree for a third share of Sishya Sancharam by dividing the book Ex. B-1. As the appellant questioned the granting of a decree in respect of Sishya Sancharam when there was no prayer, the respondent applied in this Court for an amendment and we allowed that petition for the reasons given in the order on that petition. Hence it becomes necessary to consider the question whether the plaintiff is entitled to a share in the Sishaya Sancharam itself, which in turn raises the question as to whether Sishya Sancharam itself, which in turn raises the question as to whether Sishya Sancharam is an office or is property which is heritable and partible. This question would depend upon the nature of Sishya Sancharam. On this aspect, the matter has been ably argued before us by Sri Veerabhadrayya on behalf of the appellants and Sri J. V. Suryanarana Rao for the respondents.
18. According to Parasara Sudarsana Bhattar, P. W. 4 a native of Srirangam and Sthancharya of Srirangam temple and who himself has Sishya Sancharam in Andhra as well as Tamilnad, Sishya Sancharam came into vogue originally for the sake of propagating Vaishnava cult. There are 74 Vaishnavite pithas. One Pitham belongs to his Bhattar family in Srirangam. The families to whom these Pithams belong are called Gurus. At the beginning of the commencement of the religion, those who wanted to propagate must have had sufficient knowledge enable them to do the propagation of the cult. The should know the procedure to perform Samasrayanam and the mantrams for giving Upadesam to the Sishyas. By reason of their learning and piety the Sishyas due to the faith in the Guru, give them presents, which income is divided among the coparceners. At any rate, it was done so in his family. According to him, to work as a Guru, he must have received Upadesam from another Guru. That Guru may be the father himself. He frankly admits that there is no Act or law making it mandatory for the Sishyas to continue to be the Sishyas of a particular Guru. Whatever the Sishyas give with faith and affection, the Guru will take. It defends upon the luck of the Guru as to how much the Sishyas give him. It does not solely depend upon his education.
The income derived from Sishya Sancharam is liable to be divided among the coparceners. He further stated that the rule is that the Sishyas should not desert their family Guru and opt to a new Guru. But the Guru cannot enforce this, as there is no statute or authority enabling him to compel the Sishyas to remain with the same Guru. He also stated that the income from Sishya Sancharam is not `danam' (danamu) but Guru Dakshina. According to the 1st defendant, examined as D. W. 6 his family held one of the 74 Pithams and was doing Sishya Sancharam. His father was carrying on Sishya Sancharam and he was also accompanying him. To his knowledge, his family has been enjoying Sishya Sancharam for the past 5 generations and from generation to generation. According to the order of Sri Ramanuja, it is only those who have the pithams that can do Sishya Sancharam. His father divided the Sishya Sancharam. His father divided the Sishya Sancharam amongst himself (1st defendant) and his two brothers, which consisted of dividing the areas. His father had stated to him that the property earned by him from Sishya Sancharam was his self-acquired property nonetheless they were divided among the three brothers.
According to him, Sishyas cannot be compelled to pay any fixed Dakshina, nor can the Sishyas compel them to be their Guru. The mutual relations depended upon Bhakti. To retain Sishya Sancharam the Guru must have the capacity, to give Upadesam. All Vaishnavites receive Upadesam from Gurus and recite Tirumantram, Dwaya mantram and Charama Slokam. These are taught only after Samasrayanam. If a Guru know all this, he will not be respected by his Sishyas. In so far as women are concerned, both according to D. W. 6 and P. W. 4 they can receive Upadesam, but hey cannot give upadesam, but they cannot give upadesam to others. D. W. 6 further stated that Ex. B-1 dated 1-12-1941 contains the division of Sishya sancharam and lists allotted to his share in the partition effected by his father. At page 24 of Ex. B-1 it was stated that the 1st defendant should enjoy the share from generation to generation and that his brothers are not entitled to Acharyatwam of the Sishyas. It was also stated that the profits and losses arising from these Sishyas should only be enjoyed by the 1st defendant and not by his brothers. It was also stated therein that similar lists of Sishyas allotted to his brothers were also prepared and given to them. It is enjoined on them, that they should not take the Sishyas of another Guru, even though the Sishyas may like him as their Guru.
19. From the evidence of these two witnesses as well as D. Ws. 2 and 4, the brothers of the 1st defendant, it would appear that certain families which belong to the 74 Pithams of Ramanuja, - though there is nothing more than the oral evidence of the witnesses in support of the averments - have a right by reason of their religious learning and piety to propagate Vaishnava cult and to convert the Sishyas and give them Upadesam those willing to be inducted into the cult of Sri Ramanuja. In so far as the 1st defendant's family is concerned, according to the evidence, they have been doing 'Upadesham' and 'Samasrayanam' as Gurus, from the time of their fore-fathers for several generations. It is apparent that neither the Guru's can force anyone to become a Sishya nor Sishya has a right to demand of any particular Guru to give him Upadesam nor can any Guru be confined or restrained to a particular area. This institution, therefore has none of the elements which constitute an office, and a Guru cannot be office-holder. Though there were several decisions cited by Sri Veerabhadrayya in support of this proposition, is necessary for us to consider them, inasmuch as Sri Suryanarayana Rao does not contest the position that Sishya Sancharam is not an office and that Gurus are not office holders. It appears to us on a consideration of the evidence and the relevant authorities on the subject, that Sishya Sancharam is not an office, that neither the Guru nor a Sishya can be compelled, either to initiate or be initiated as a Sishya, and as such it is not a right which can be enforced.
20. While not controverting the position taken by Sri Veerabhadrayya that there is no element of compellability or mutual rights inter se between the Guru and Sishyas, i.e., that neither the Guru can compel anyone to become a Sishya nor a Sishya anyone to become a Sishya nor a Sishya can compel the Guru to give him Upadesam and the right cannot be enforced, nonetheless, Sri Suryanarayana Rao contends that as between the members of the family who have Sishya Sancharam, viz., `the right to the collections on the performance of Samasrayanam and Upadesam' is property, that it is joint family property, that it has been so sanctioned by custom and usage and is, therefore, divisible among the coparceners just as every joint family property is divisible. If that is so, since the Hindu Women's Rights to Property Act, 1937, confers a right upon a Hindu Woman to the share of her husband, the plaintiff can ask for partition of the Sishya Sancharam, and notwithstanding the fact that the custom and usage prohibit her from giving Samasrayanam and Guru-upadesam to Sishyas, she can do so by a proxy, as held by the Supreme Court.
21. Even the Bombay view that Yajaman Vritti is a Nibandha and is ranked among hereditary rights of immovable property has not been consistently adopted by other courts. The Allahabad High Court in Hanso Patak v. Harmandil Patak, AIR 1934 All 851, has said that is not property, while in Mt. Sarada Kunwar v. Gajanad, AIR 1942 All 320 though the above case was referred, it was not actually taken note of. The Calcutta High Court has not adopted a uniform view. There, however, seems to be consistency in the Patna view. The view of the Madras High Court has been that it is neither an office, nor is it a property, that what is earned is Guru-dakshina, is self-acquired property just as any other property earned by self exertion which under the Hindu Law texts or under the Hindu Gains of Learning Act is self-acquired property . In Krishnabhat Hiragange v. Kapabhat Mahabalbhat, (1869) 6 Bom HCR 137 the plaintiff, the hereditary priest of a temple, claimed that in 1813 the right of worship was divided between his ancestors and the ancestors of the 1st defendant that he died while the plaintiff was an infant and on the plaintiff attaining majority and seeking to assume his share in the worship and its emoluments, he had been prevented by the defendants, who except the 1st defendant were the head-men of the temple.
It was, therefore, prayed that his right to officiate and to take a moiety of the proceeds of the ceremonies be declared. The Munsif and the District Judge on appeal held that the plaintiff's father having died more than six years, but less than twelve years before the commencement of the suit and the plaintiff having attained his majority more than three years before it, the suit was barred by the law of limitation. In second appeal, relying on the texts of Hindu Law, it was held that the hereditary office was classed as immovable property and was in consequence of the custom the office of priestship in a temple may not in the ordinary sense in a temple may not in the ordinary sense be termed immovable property, but is an incorporeal hereditament of a personal nature, yet being by the custom of Hindus classed with immovable property and so regarded in their law, the suit was within limitation. This view was confirmed subsequently in Balvantrav v. Purshotam Sidheswar, (1872) 9 Bom HCR 99; Chandavarkar, J. in Ghelabhai Gavrishankar v. Hargowan Ramji, ILR 36 Bom 94 delivering the judgment of the Bench consisting of himself and Hayward, J. dealt more elaborately with the question while adopting the view previously held that under the Hindu Law, the office of hereditary priest, (Yajman Vritti) is a Nibandhi and is ranked among the hereditary rights of immovable property.
Where a caste had appointed a man to a mere priestly office, whose continuance or removal was within the competence of the caste, there was doubtless no right of property conferred but where the office of a hereditary priest was created for the performance of religious ceremonies in certain families, it is immovable property provided, according to Hindus, either the caste or the families have power to create such an office, and give it the character of immovable property. The learned Judged thereafter considered the question whether such n office, being in the nature of such a class of immovable property, which is regarded as Nibandha by Hindu lawyers, can be created except by a grant from the King and proceeded to examine the gloss put by Vijnaneswara in the Mitakshara, on a Smriti of Yajnavalkya, which prescribed the mode in which the King must make grants of land or corrody (Nibandha) if they are to be legal that the gloss of Vijnaneswara was merely contrasting 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 but according to Nilakantha's opinion, it is not the King only who can make a grant of Nibandha. For these reasons, Chandavarkar, J., at page 102 thought; '............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.' On an examination of the evidence in the case, it was held that according to the custom, the caste had created a right of a hereditary priesthood in the plaintiff's ancestor who could not be removed so long as he has not become a patita, and pointed out that any other view would be disastrous to Hindu society as it was constituted. The learned Judge further observed at page 104 as follows; -
'To the enlightened sentiment of the present day it does indeed seem unfair and oppressive that 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.'
22. In the Full Bench of the Bombay High Court in Collector of Thana v. Hari Sitaram, (1882) ILR 6 Bom 546 the question whether a Nibandha can be created by private individuals other than Kings, appears to have been raised but was not decided. At p. 559 it was observed that there are some authorities for the proposition that a private individual as well as a royal personage may create a Nibandha, but whether that view is sustainable was a question on which they did not intend to give any opinion, it being unnecessary. While the true intention of Yajnavalkya and his commentator Vijnaneswara is that a King alone, and not his deputy, can make a gift of land and a Nibandha, the Dayabhaga and other commentators referred to in the judgment of Chandavarkar, J., have taken the view that a Nibandha can also be created by persons other than Kings, Vijnaneswara's gloss on the smriti of Yajnavalkya was categorical in rejecting the creation of a Nibandha by any person other than the King, and since it left no room for doubt, the view of the Dayabhaga or the definition of Nilakanta in Vyavahara Mayukha, which, though consistent with the basic principle that Nibandha is what is given by the King, use of the word 'etc.' after the word 'King' to mean that persons other than a King can also create a Nibandha.
In any case, according to the Bombay, view the exclusive right a purohit, including females in certain villages to initiate and perform the duties of a purohit is (i) an `office' of a hereditary nature and can be created by persons other than a King; (ii) that that office carried with it the hereditary right in the nature of property and (iii) that the custom annexed to this office certain rights which neither the caste have the power to annual, 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. It may be noted that on this view, the person who has to receive services seem to have no choice. In any case, even in Calcutta, where Dayabhaga school of law prevails, a Bench of the Calcutta High Court, and Mukerji, J., in an Allahabad case, to which cases we will presently refer, have, on the basis of Hindu texts, taken a view different from the one expressed by the Bombay High Court. It, however, appears to us that the view which prevailed in Bombay, as their Lordships of the Privy Council in Fatteshangji v. Kallianraiji, (1874) 1 Ind App 34 (PC) have pointed out, could have been justified on a consideration of Section (I) of Bombay Regulation 5 of 1827, which expressly declares hereditary offices to be immovable property and which was unaffected by Act 14 of 1859.
23. What is property has not been defined anywhere and is difficult of definition. There are so many aspects of it that it is not our desire to examine all of them. The word 'property' is used in the Transfer of Property Act and in the Constitution of India in its widest and most generic sense. It is the most comprehensive of all terms which can be used, as it is indicative and descriptive of every possible interest that a person can have. It includes rights such as trade marks, copyrights, patents and personal rights, or a share-certificate capable of transfer or transmission. It is for this reason Ghulam Hasan, J., in Dwarakadas v. Sholapur Spg. and Wg. Co., : 1SCR674 stated that the word `property' used in Art. 31 of the Constitution embraces within its purview both corporeal and incorporeal rights and that it is not possible in the nature of things to lay down any inflexible test which may be universally applicable. It would however, be sufficient if we were to confine the concept to corporeal by a person affected. A family may be practising a profession. But the duties of the profession mainly depend on the proficiency of each individual. It cannot be said that the right to practise that profession is an insignia of property.
In a larger sense, it may be a right to practise the profession. Viewing the right of an office of priesthood and the rights attached to it was envisaged by the Bombay High Court, it does not satisfy that definition of property. The priest has no right to compel any person, family or caste to receive his services nor conversely can be person, family or caste compel the priest to give his services or ministrations. The right of the priest is only a right to receive fees or perquisites if his services are accepted by persons who are under no obligation to accept them. In such a view, the right of the priest is nothing more than a chance or a prospect of having particular customers and it cannot be said to be a right to property. (Vide the decision in Ram Jawaya Kapur v. State of Punjab : 2SCR225 ).
24. In Ramakrishna v. Ranga, (1804) ILR 7 Mad 424 at p. 427 the suit of the plaintiff that he be declared to be herditarily entitled to be the purohit of the defendants and for loss of fees caused by the defendants employing another purohit was dismissed on the ground that the plaintiff has no cause of action. It was argued that as the original purohit was appointed to the village for the convenience of the inhabitants, the later are not entitled to employ may other purohit and if they do, they must pay the plaintiff the fee the would be entitled to if he performed the service. This contention was negatived on the ground that in the early days the Govt. had in each village, appointed village artizans to whom inams were assigned to secure their presence for the performance of duties and that no usage has been alleged or proved to establish the right which the plaintiff claimed, and that though the Bombay High Court in Dinanath Abaji v. Sadashiv Hari Madhave, (1879) ILR 3 Bom 9 recognised such a claim, and held the suit to be maintainable there was no decision in the Madras Presidency recognising such a claim. It was also pointed out that the Bengal and the North-Western Provinces has also denied such claims. So is the case in Tolappala Charlu v. Venkata Charlu, (1896) ILR 19 Mad 62, where another Bench of the Madras High Court, consisting of Collins, C. J. and Parker, J. held that the suit by the plaintiff as Anagundi Raja guru to be entitled to a declaration of his right to the hereditary office of priest of Samayacharam was not cognisable by a Civil Court. The bench posed the question whether the priestship of Samayacharm is an office for which suit will lie in a Civil Court, and in answering this question, it distinguished most of the cases cited before it on the ground that as the priestship was not attached to any particular temple or place and no specific pecuniary benefit was attached to the office, the only emoluments being voluntary contributions, which the duties of the office were to exercise spiritual and moral supervision over people who were a certain caste mark in a certain tract of country, a suit would not lie in a Civil Court as no such supervision over people who wear a certain caste mark in a certain tract of country, a suit would not lie in a Civil Court as no such supervision over the members of the caste can be enforced by law, it being entirely within the option of each individual member of the caste whether he will submit to it or not.
In Valeswara Iyer v. Muthukrishna Aiyar, (1911) 21 Mad LJ 57 at p. 62 though the Bench did not consider necessary to deal with all the points which the learned counsel on either side had laid before them, nonetheless, certain arguments of eminent advocates, Sri Sundra Iyer and the Advocate-General, Sri P. S. Sivaswamy Aiyar were referred to before us. The suit was for a perpetual injunction to restrain the defendants from acting as purohits to certain classes of pilgrims resorting to Rameswaram and for recovering Rs. 4000 damages. The Advocate-General had argued that the suit was not of a civil nature, that the right to administer purohitam is not an office that the conception of an office involves the conception of a duty and of a liability to be compelled to discharge the duties appertaining thereto, that the office must be exercisable with reference to some particular locality and there must, as a rule, be emoluments attached to it, and that these elements attached to it, and that as the plaintiffs cannot be compelled to employ or pay plaintiffs. In Srinivasa Thathachariar v. Srinivasa Aiyangar, (1899) 9 Mad LJ 355 it was held by the Officiating Chief Justice that the term, `office' implies a duty in the office-holder to be discharged by him as such. In other words the conception of office involves corresponding obligation to perform the duties of an office.
25. In Saripaka China Mahadeva Vazulu v. Muthura Suryaprakasam, 26 Mad LJ 482 = (AIR 1915 Mad 597), Sadasiva Aiyar, J. one of the eminent Judges of the Madras High Court whose profound learning and through knowledge of the Shastras inclined him to take an objective and liberal view of the Hindu polity earned him the reputation of a reformist, did not accept the Bombay view, which was based on a long set of precedents. The learned Judge held that it is against public policy to recognise a monopoly of the right to initiate as a priest which is a legitimate calling for all Brahmins. At p. 483 (of Mad LJ) = (at p. 597 of AIR) he said:
'I am strongly against the recognition of an office which could give rise to an exclusive right to officiate as purohit for a particular person or in a particular village or villages, especially, a right which can be enforced in court of law. I adopt the arguments of the learned Advocate General as reported at page 63 in (1911) 21 Mad LJ 57 Supra, and I hold that a monopoly to officiate as purohit should not be recognised by Courts and that it is against public policy to allow any such claim. One of the lawful occupations of a Brahmana is officiating as priest for other and receiving whatever is freely and voluntarily given after such priestly office is performed. But there is no authority in the Shastras for the view that the occupation carries with it the right to put the duties on the shoulders of a third person while receiving a portion of the remuneration given for the performance of the duties. That a custom to claim a monopoly to pursue an occupation which is reasonable at one time may become unreasonable at another time has also been suggested by Lord Macnaghten in the course of the arguments before the Privy Council in the case in Sadagopachariar v. A. Rama Rao, (1907) 17 Mad LJ 240. The right to exclude other people from following a legitimate calling or profession (the calling of purohitship being open to all Brahmins) cannot be countenanced by Courts. There can be no individual property in any such common calling though, of course the following of that calling by the plaintiff as an individual can give rise to rights in his as against those who have entered into contracts and obtained benefits from the exercise of that calling by the plaintiffs.'
26. It appears that in two other decisions, in S. A. Nos. 1470 and 1471 of 1911 (Mad), he had stated that 'a claim to succeed by hereditary right up any office, especially to an office involving spiritual ministrations, should be looked upon with strong disfavour by Courts. At page 484, (of Mad LJ) = (at p. 598 of AIR) the learned Judge observed:
'It also hold that it is contrary to the Hindu Shastras to recognise any such hereditary right, in a spiritual office, the right to hold such an office depending on the requisite spiritual qualifications.'
Seshagiri Aiyar, J., also agreed with this view and stated at page 485 (of Mad LJ) = (at p. 599 of AIR).
'I do not think that it can be said that purohitam is an office to all, that it is hereditary and that is immovable property, which can be leased.'
27. These decisions clearly establish that the hereditary priestship unless it is attached to a temple or mosque is not an office, is not property, and the right to minister it or to receive remuneration, cannot be enforced in a Civil Court. These propositions are based on the view of Shastras.
28. The nearest cast to Sishya Sancharam is that reported in Sri Bhashyam Konayamma v. Sri Bashyam Ramaswami, AIR 1928 Mad 851. In that case Waller and Madhavan Nair, JJ., had to consider whether a suit for recovery of a share of offering technically called sishyadayam made by disciples and collected by the Guru, is cognizable in a Civil Court. The Bench held that the suit was not cognisable because the existence of any office in connection with which the voluntary offering were made by disciples had not been established. Reliance was placed on (1896) ILR 19 Mad 62, Supra, Chunnu Datt Vyas v. Babu Nandan, (1910) ILR 32 All 537, Hira pandey v. Bachu Panday, (1916) 1 Pat LJ 381 = (AIR 1916 Pat 215) and Dwaraka Misser v. Ram Pratap Misser, (1911) 16 Cal WN 347. Referring to the plaintiff's suit, the Bench observed at page 852:
'It is conceded that he (the plaintiff) cannot institute any suit against the disciples themselves for enforcing the payment of their offerings. In view of the decision of this Court, we are satisfied that a suit of the nature brought by the plaintiff will not lie in a Civil Court.' The right to conduct a particular festival in a temple or the right to hold a lighted torch inside the chariot during a car festival in a temple, were also held not to be of a civil nature and that a suit to enforce those rights does not lie, as they related to merely religious honours and dignity and not to an office - See Chitti Babu Mudaliar v. Venkatasubbu Mudaliar, AIR 1933 Mad 264 and Suryanarayana Murti v. Rama Rao, : (1953)1MLJ682 .
29. This Court also in Sarwar Lal v. Ram Narayan, : AIR1959AP307 to which one of us (the Chief Justice) was a party, had in considering the question whether a `brit' (vrit) i.e., a right to priestly dues or voluntary offerings of the Jujmans (Yajmans disciples) for the funeral rites or ceremonies, is a legal right, a right which has received judicial recognition, or even a right to office or property, held that when the funeral rights are to be performed by the Maha Brahmins of the choice of Yajmans and further when every priest in case of his refusal cannot be perform the same, in other words, when no right is vested either in the plaintiff or in any Maha Brahmins in relation to the performance of these ceremonies, and no corresponding obligation is laid on him, it is difficult to hold that the birt right is a right pertaining to any office. Similarly, it was further held, when the plaintiff cannot exclude the other Maha Brahmins to perform the ceremonies if they are called upon to do so by the persons concerned, it cannot be said to be the property of the plaintiff. The vrit right was accordingly held to be neither a right to an office nor does it constitute property so that it may be deemed to be a civil or legal right to property in relation to which a civil suit may lie.
30. A Full Bench of the Hyderabad High Court in Gopal Rao v. War Nasi , AIR 1953 Hyd 1 was also of a similar view. In that case the suit was for a declaration of a right to perform `prohitgiri' in particular village to the exclusion of others. At p. 3 it was observed:
'Whatever might have been the trend of the decisions of the Courts in India or in Hyderabad prior to the coming into force of the Constitution, the view contended for by the respondent's counsel can no longer continue to prevail after the 26th January 1950 for the reason that it would clearly offend Art. 19(g) of the Constitution, for among the fundamental rights conferred by the Constitution, the right to practise freely any profession or to take up any calling without any hindrance, is one of the fundamental rights which has to be protected. If the Court were to give a decree in favour of an individual declaring him alone to entitled to practise the profession of `purohitgiri' to the exclusion of others, it would amount to laying a restraint upon the others to carry on the same profession in the village. It would decidedly offend the fundamental rights and as such cannot be countenanced.'
31. It appears to us on an examination of the aforesaid cause law that the consistent view of the Madras High Court and this Court and even the erstwhile Hyderabad High Court is that, the performance of spiritual duties, even though it may be hereditary, is neither a right nor an office unless it is attached to a temple or an institution nor is it property, and is not enforceable in any Civil Court.
32. Sri Suryanarayana Rao however, contends that the decision in those cases is only to the effect that hereditary priesthood or purohitam is not an office and none of the Madras cases has held that as between the members of the family, purohitam or Sishya sancharam is not property or joint family property. We do not agree that the decisions can be explained on that footing. In 26 Mad LJ 482 = (AIR 1915 Mad 597) which has already been noticed Sadasiva Aiyar, J. stated that there can be no individual property in any such calling and the sale or lease or mortgage of any such office or exclusive right should not be recognised as it opposed to the Hindu religion and also to public policy, Seshagiri Aiyar, J., also observed that purohitam is not only not an office but that it is not immovable property which can be leased. From the decision of Sadasiva Aiyar, J., it is also apparent that the decisions of the Bombay High Court were cited before the Bench and it was observed that no doubt in Bombay the exclusive right to officiate as a purohit has been recognised by the Court as entitling the holder thereof to bring suits to establish the said rights. As the Bombay view was before the Bench it would not be unreasonable to presume that the Bench rejected to immovable property, especially in view of the observations by the two learned Judges referred to above.
33. In Veernath v. State of Hyderabad (1957) 2 Andh WR 324 = (AIR 1957 Andh Pra 1034) a Bench of this Court (to which one of us, the Chief Justice, was party what was being considered was a right to a cash grant conferred on the family by the Government, which by the terms of the grant itself, was heritable, but subject to a decision of certain amounts in each succession and the heirs being recognised by the State in proper proceedings. This certainly is property, as it is enforceable as against the State and all other persons who may not be entitled to receive it.
34. The Calcutta view is set out in Gour Moni Debi v. Chairman of Panihati Municipality, (1910) 14 Cal WN 1057 at p. 1061 where Sir Asutosh Mookerjee, J., another eminent Judge of this country learned in Shastras sitting with Teunon, J., considered the right of a Hindu lady, a member of a degraded Brahmin class known as Mariporahs, to officiate in a specified burning ground at the cremation of all dead bodies brought there, and of the right of the Municipal Corporation to create an exclusive right of such character in favour of a member of that class of Brahamins. The plaintiff alleged that she had the hereditary right in the family to the performance of those ceremonies which she was getting performed by her husband as her agent. While observing that the view of that Court has been that a suit by a person claiming to be entitled to a religious office of the description alleged in that suit, against an usurper is a suit of a civil nature, and that a similar view was also taken by the Bombay High Court though a contrary view has apparently been maintained in Madras. Mookerjee, J., posed a further question, namely, whether it is a right enforceable in law, and answered it in the negative. After examining a large number of cases of the different High Courts, viz., of Allahabad, Bombay, Agra, Madras and of his own Courts, and after referring to the Hindu Law texts, the learned Judge observed at page 1064:
'We must consequently hold that the claim of the plaintiff, in so far as it is sought to be rested on Hindu law, cannot be supported, and she cannot obtain a declaration that she is exclusively entitled to perform religious ceremonies on the occasion of the cremation of dead bodies brought to the particular burning ground.'
Even the claim of the plaintiff founded on custom was negatived, on the ground that one of the four elements as set out by Tindal, C. J. in Tyson v. Smith, (1938) 9 A and E 406, viz., the reasonableness, was lacking. The Bench posed the question: 'Can it be contended with any show of reason, that a custom of the description now before us, was reasonable at its commencement? and answered in the negative in these words, at p. 1065:
'...........for there would clearly have been no agreement, express or tacit, between the ancestors of the plaintiff and an indefinite body of men that from generation to generation the latter would employ the members of the family of the former, as cremation priests. Even if it be assumed therefore, that the existence of the custom has been proved it must have resulted from accident or indulgence in other words, even if it be conceded that by reason of the absence of other degraded Brahmins in the locality, the members of the family to which the plaintiff belongs have for many years past, discharged the duties of cremation priests, it is clear that they have acquired no monopoly. The voluntary consent of the people to the decessors as cremation priests, cannot confer upon them any exclusive right, and the continuance of this state of things, even for generations cannot confer upon her a legally enforceable right Salisbury v. Gladstone, (1861) 9 HLC 692 at p. 701. If we were to recognise the alleged custom as reasonable, we would have to uphold what must, in the end, turn out to be an oppressive monopoly and the very first reason assigned in the celebrated case of monopolies, Darcy v. Allen, (1602) 2 Coke 84 would be conclusive upon the matter, namely, that if the monopoly was sustained, the person in whose favour the monopoly was created, might charge whatever price be pleased.'
35. This view was again affirmed by the same Bench in (1911) 16 Cal WN 347. That was case in which the plaintiffs alleged that they were entitled to officiate as priests at the offering of Pindas on the banks of the sacred river Pungam in the District of Gaya. Distinction was made between cases in which offering were made to an idol or some other image of the deity and those to which no office is attached. It was held that the plaintiffs had neither alleged nor established that they have any right to the holy spot, by grant or otherwise, nor had they alleged and proved that they had a hereditary right to officiate as priest at the worship of an idol to whom offering were made and to have a share in such offerings. It was observed at page 350; 'If what was paid to the officiating priest was paid to him personally by a particular pilgrim, the plaintiffs would not be entitled to claim a share in such sum.'
36. In Raghoo Pandey v. Kassy Parey, (1884) ILR 10 Cal 73 what the Calcutta High Court was considering was whether the provisions of the Limitation Act would be applicable to a suit for enforcing the right to officiate as priest at funeral ceremonies of Hindus. It was held, treating the right as in the Hindu law, that the provisions of that Act was applicable. But the further question whether it is enforceable was not considered in that case. Narayanalal v. Chulhan Lal Gupta, (1912) 14 Ind Cas 677 is not a case which goes against what has been held by the Calcutta High Court, because the same eminent Judge, Asutosh Mookerjee, J., was a member of that Bench. What was held in that case was that when payments were made to an officiating priest by a pilgrim the presumption is that is a personal gift which may be retained by the priest himself, but that the members of a family may agree amongst themselves that whatever anyone amongst them may earn by officiating as priest, is to be brought into a common fund and divided in certain proportions amongst them, in which case, the ordinary presumption of Hindu law applies that there was a joint family and a joint fund belonging to that family.
The Bench relied upon the earlier case of that High Court in (1911) 16 Cal WN 347 (Supra). It rejected the contention that the books in which the names of pilgrims were recorded cannot be treated as partible property. The contents and the nature of the books in that case was stated thus: 'The names and addresses of the new-comers are entered in the book kept by the Gayals, and they are required to sign their names therein, if they know how to write. As a rule, those pilgrims, if they come again, and their descendants, go to their appointed Gayals or the descendants, when they have to perform the ceremony.' It was observed that the books, though they may not have any market value, are of considerable importance to the members of the family and could be divided on the basis of a number of entries in each book and each party can be given a number leaves containing as nearly as practicable the same number of entries as to any other coparcener. While so deciding, the Bench recognised the principle that as the pilgrims themselves are not parties to the litigation, they will not be bound to accept the services of any of the members of the family as an officiating priest on the occasion of their visit to Gaya.
37. It is, therefore, apparent that the consistent view of the Calcutta High Court also has been that the right to perform duties of a priest or to officiate at funerals claimed exclusively by a family, though established by custom, is unenforceable because firstly it would create a monopoly which the law looks with disfavour and secondly, such a custom, even if proved, would be unreasonable. It was further pointed out that in any event, since the pilgrims or those that are supposed to be the recipients of services or ministrations are not parties to the litigation, the right could not be enforced in a Court of law.
38-39. In AIR 1934 All 851, the Allahabad High Court was considering a case where the plaintiff claimed a share in a house built by his father out of his income as a Pandit, on the ground that the same work had been carried on by his grandfather and therefore, the right to receive such income is a part of the family property. It was found that the plaintiff's grandfather was a Brahmin who officiates as a Pandit in the houses of his clients and received some income and after his death, the plaintiff's father carried on the same work. Sulaiman, C. J., speaking for the Bench said at pages 851-852:
'If the right to receive offerings were connected with any land in the occupation or user of the family or with any temple at which they were officiating, the right might possibly be a family property or again if there were a service which would be rendered even against the will of others, on whom it is to be imposed, it might be claimed as of right. But the income received as amounts paid by people at their discretion either by way of charity or by way of remuneration for personal services rendered, cannot be claimed as of right, and cannot, in my opinion, amount to a family property.'
He recognised that the Bombay High Court in some cases had taken a different view. Mukerji, J also dissented from the Bombay view, relying on Cole-brooke's Digest and said that though according to the practice in some castes in the Bombay Presidency, the institution of `hereditary priests' obtains, there are texts which negative the idea that the earning of a priest should be treated as shareable by his coparceners. He describes such earnings as 'Vidyadhana', as they are classed among gains of learning.
40. While this case was no doubt considered in AIR 1942 All 320, what the Bench was considering was an appeal against the dismissal of a suit for a declaration of the rights of Ganga Putra a class of Hindu priests, for an injunction restraining the defendants from interfering with their right of Birt Jajmani and for recovery of possession of the pilgrims' Bahis. The Bench held that that right was a heritable property and in some case transferable and that the suit for enforcement of such a right is a suit of a civil nature and hence is cognisable by a Civil Court. The earlier decision in AIR 1934 All 851 (Supra) seems to have been explained away on the ground that it was a case of Manbrit, which essentially differed from Birt Jajmani, in that it was a personal property. Whatever may be the distinction sought to the made by Dar, J., who delivered the judgment of the Bench the observations of both Sulaiman, C. J. and Mukerji, J., appear to be clearly in conflict with the view taken by the latter Bench.
41. There is, on the other hand a decision in (1910) ILR 32 All, where a right to perform certain religious pageants, not connected with any particular shrine or temple is held not to be a civil right and a suit cannot lie for an injunction to restrain the defendants from interfering with that right.
42. The Patna High Court seems to have taken a consistent view that the occupant of Gayawali Gaddi does not hold a priestly office or an office of a religious nature and that it is a business in which the occupant has a right of property and as such, it can be transferred. See Murari Lal v. Narayan Lal, AIR 1956 Pat 345. The Bench noticed that a contrary view was taken by the Madras High Court where it was held that a right of a similar nature cannot even be leased. In Lachman Lal Pathak v. Baldeo Lal Tathweri, 42 Ind Cas 748 = (AIR 1917 Pat 37) the same view was taken. See also Gopal Lal v. Baiju Lal, : AIR1958Pat647 . These cases have held that the books also can be divided.
43. The Oudh High Court in Gaya Din v. Gur Din, AIR 1929 Oudh 257 and Gur Prasad v. Gur Prasad, AIR 1944 Oudh 321 has taken the view that the right of Maha Brahmans is a right in property and even though offerings are made to one of the members, the income is not his exclusive property but is ancestral property and is, therefore, heritable and partible.
44. In Bhurthu v. Bhushan Prasad, Air 1952 Nag 307 a Bench of the Nagpur High Court consisting of Hidayatuallah J., (as he then was)and Chowdhuri, J., held that under the Hindu law, a hereditary priesthood is regarded as immovable property capable of partition, and relied on (1874) 1 Ind App 34 (PC). In Ghisibai v. Mangilal, AIR 1953 Kadh Bha 7 the Madhya Bharath High Court discussed the difference between Yajman Vriti and Man Vriti. It said that while Man Vriti the relation between a Yajman and Purohit is casual or temporary, without any fixity of character and in consequence is not a heritable asset, a Yajman Vriti creates a permanent relation, which is regarded as a heritable property, and sometimes transferable as well, and that it is also divisible.
45. In Ramachandra v. Maguni, : AIR1951Ori64 , Jaganadhadas, J., (as he then was)held that though the right to officiate as a priest or as a Guru simpliciter is not a civil right, such a right has been recognised where it amounts to an office attached to an institution such as a temple, and that when the question whether there is such an office is in issue, that fact that there are emoluments of a non-gratuitous character payable out of the funds of the institution, has been considered as relevant though the absence thereof is not always decisive. It was further held that the crucial test in considering whether the claim to the purohitship of a temple is a claim to an office or not is whether there are duties attached to the purohitship which are enforceable by law, custom or usage, whether by deprivation or other temporal sanction.
46. Finally, reference was made to be decision of the Privy Council in (1874) 1 Ind App 34 (PC) supra. In that case, the appellant before the Privy Council had brought the suit to establish his right to and recover possession and enjoyment of, certain huq, or right, called a Toda Giras Huq, issuing out of a village and payable out of its revenues by the respondent as inamdar thereof, to the appellant as Girasia proprietor. After considering the evidence, their Lordships held that whatever may have been the origin of the huq, it must be assumed to be now a right to receive an annual payment which has a legal foundation and of which the enjoyment is hereditary and that the liability to make the payment is not personal to the respondent, but one which attaches to the inamdar into whosoever hands the village may pass, or in other words, that the huq is payable by the inamdar virtue tenurae. They held that the toda giras huq constitutes a recognised species of property capable of alienation, and of seizure and sale under an execution. It was, therefore, held that the suit was for recovery of interest in immovable property within the meaning of Clause 12, Section 1 of Act 14 of 1859 (Limitation Act). It was also observed by their Lordships that inasmuch as the term `immovable property' is not defined by the Act, it must, when the question concerns the rights of Hindus, be taken to include whatever the Hindu law classes as immovable, although not such in the ordinary acceptation of the word. Their Lordships were careful to observe that they had no objection to the application of this rule within the proper limits. Discussing the meaning of `Nibandha' they stated that whether a toda giras huq is a Nibanda is not very free from doubt. They added that it was necessary to consider that point, because they were of opinion that the question whether a toda giras huq is an interest in immovable property within the meaning of Act 14 of 1859 is one which ought not to be determined by Hindu law, as the said huq was not confined to Hindus but may be held and enjoyed by Mahomendans, Parsees, or Christians and therefore the determination of the question depended on the general construction of the term of immovable property as used by the Indian Legislature. It is for this reason that their Lordships were not really concerned and were indifferent to the application of the principles laid down in this Bombay decisions to the facts of the case before them.
47. The cases which we have examined above have taken different views, some consistent with the view taken by the Madras and Andhra High Courts and others with the Bombay High Court. Whatever may be the view taken by the Bombay High Court and the other High Courts which followed it, those decisions seem to be confined to hereditary services of Brit Yejman to be rendered by the priests or purohits at Punyakshetrams which Hindu pilgrims all over India visit. This well known institution of Birt Yajman, which was attached to and peculiar to the States in which those Punyakshetrams are situated, as it were, came to be treated somewhat similar to an office attached to an institution. It has been seen that some of the Pandas and Goyals take the signatures of the pilgrims in books which belong to the family, and visible demonstration of those who had already visited will enable them to solicit pilgrims to engage their services. We would, however, prefer the view taken by the Madras, which has been maintained for nearly a century and of this High Court and of the Hyderabad High Court in holding that unless the duties of the priest are attached to a shrine or temple or any such institution and is considered an office, it is not a right in property, nor is such right compellable in its very nature inasmuch as the disciples cannot be made parties to the action, nor can custom which does not satisfy the test of reasonableness can so create it. Accordingly, we hold that Sishya Sancharam is not a right in property which is hereditable or divisible.
48. There may be property in books, strictly speaking, but ordinarily what is entered therein must confer an enforceable right, such as a suit on account books etc. Even an autograph book may have some value, and if it is capable of division, it may be divided, or the books sold and proceeds divided in which case it may be heritable. On this basis perhaps, the view taken by the Patna, Oudh and Calcutta Courts in respect of books of Goyals and Pandas etc., may be explicable. But there seems to be no such property in the entries in Sishya Sancharam books which have no authentic value. An examination of Ex. B-1, which is a book said to have fallen to the share of the 1st defendant, would show that genealogical tables of Sishyas seem to have been prepared without any material or source of information as to how and by whom they were prepared. At the most, that is a book containing the addresses of the Sishyas against whom there is no enforceable right.
49. The offerings given to any Guru performing Samasrayanam are his personal property. The statement that property acquired from science and learning is separate property has had ancient sanction. Katyayana enumerates exhaustively the gains of learning. As pointed out by Mayne (Mayne's Hindu Law and Usage (11th Edn 352) gains which were the result, not of the education received at the expense of the joint family but of the peculiar skill and mental ability of a member educated at the expense of the family were not partible. There is no doubt left after the passing of the Hindu Gains of Learning Act, which provides that no gains of learning shall he held not to be the exclusive and separate property of the acquirer, merely by reason of his learning having been imparted to him by any member of his family, or with the aid of the joint funds of the family or with the aid of the funds of any member. The further fact that the acquirer or his family, while undergoing education or training was maintained by the funds of the joint family or of any member of it, is made wholly immaterial.
50. We have held that the right of Sishya Sancharam is not an office. We have held that it is not property. We have held also that the presents and perquisites received by the Guru from the Sishyas are separate property. In the light of these conclusions, we hold that the plaintiff is not entitled to a decree for a third share in Sishya Sancharam and for the division of the book Ex. B-1. It follows that a suit asking for such a relief will not fall under Section 9, Civil P. C. and therefore, cannot be entertained in a Civil Court. Though the moneys, presents are perquisites acquired by Sishya Sancharam are the separate property of the 1st defendant, we have held that, by reason his declarations and conduct and blending his self-acquisitions with the family property, they have ceased to be his self-acquired property and have been impressed with the character of family property in which the plaintiff can claim a share.
51. In the result, the plaintiff will be entitled to be preliminary decree for partition of the plaint A schedule properties into three equal shares and for allotment of one such share. She will also be entitled as already held to mesne property in item 2 of A Schedule from the date of suit. Her claim with respect to the other properties in B and C schedules, and for accounting and division of Sishya Sancharam, is negatived, and the suit in respect thereof dismissed. The decree passed by the trial Court in this regard is set aside. The appeal is accordingly allowed in part. The appellants and the respondent-plaintiff will pay and receive proportionate costs to the extent of their respective successes here and below.
52. The C. R. P. which is against the order awarding interim maintenance to the plaintiff, dismissed as there are no grounds for interfering with the order of the lower Court, No costs.
53. Order accordingly.