1. On the Question of law raised in this second appeal, namely, whether the right claimed by the plaintiff-appellant is a civil right cognizable by a Civil Court, we feel that our decision must be in the negative. Plaintiff claims to be the owner of the big smashan (cremation ground) in the bed of the river Moosi and to have performed funeral ceremonies of the Kayast, Khatri, Marwari and Rajput people from time immemorial through his Maha Brahmin agents, specially called from the North for this purpose and also to have enjoyed exclusivciy a moiety of the voluntary offering made by the Jujmans towards the funeral rites of Phekwai, Betharni, Dooshala, Uthala, Daswan, Kriya Karma for the past 200 years.
The defendants, according to him, are his servants who by virtue of some agreement are entitled to half the share in the offerings in lieu of the funeral rites they perform at that place. Plaintiffs contention is that as against this established practice they (the defendants) have failed to give his share in the offerings made in connect ion with the funeral rites of Raja Tarachand. He has therefore brought the suit for the recovery of his share amount and also for a permanent injunction restraining the defendants from interfering with his right to take his share in the proceeds of such ceremonies as the defendants would perform.
2. The defendants resisted the claim of the plaintiff on the ground that the plaintiff has no exclusive right, that he is no longer a Maha Brahmin as he has embraced Main, that they are neither his agents nor has the performance of funeral rites been in pursuance of any contractual obligation between the Dlaintiff and themselves. They claim that they as Maha Brahmins are entitled to perform the funeral rites at the request of their disciples or Jujmans and the plaintiff cannot claim anv share in the voluntary offerings made to them. They further contend that the alleged 'vrit' (birt) right is not a legal or civil right enforceable in law.
3. The Court of the first instance held that inasmuch as the alleged 'vrit' (birt) right is connected with a particular place and the plaintilf is in possession of the same from the time of his ancestors enjoying a share in the voluntary offerings of the Tujmans it is a property in relation to which a suit can lie in the Civil Court. He however held at the same time that this right does not confer on the plaintiff the privilege of compelling Jujmans to get the ceremonies done by him or by his agents and pay remuneration therefor for such acts naturally depend upon the volition of the Jujmans concerned.
He therefore gave a decree to the effect that if the persons concerned wish to get the ceremonies, done by the plaintiff or his agents, the defendants will not interfere with that right. He also iound that the defendants were not acting as agents or servants of the plaintiff in performing the funeral rites and that his suit against them for recovery of the amount in relation to Raja Tarachand's funeral rites cannot be decreed.
In the result, the suit of the plaintiff was partly decreed. But the lower appellate Court, differed from the view of the trial Judge that the 'vrit' (birt) right claimed can at all be said to a right to property or a civil or legal right cognizable by Civil Courts and dismissed the entire suit on that account. It is against this order that the plaintiff has come in appeal.
4. It may. be stated at this stage that the plaintiff did not prefer any appeal in the lower Court against the portion disallowed by the trial Court with the result that the decision of the trial Court in relation to the recovery of Rs. 200/- has become final. Nevertheless, the learned advocate has canvassed all the points in support of the claim of the plaintiff as originally advanced. The main point on which the fate of the suit must rest is of course whether the right claimed is of civil nature cognizable by the civil Courts. To appreciate this, a reference to the provisions of Section 42 of the Specific Relief Act and also Section 9 of the Civil Procedure Code seems to be necessary. The said sections read thus;
'Section 42: Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and, the plaintiff need not in such suit ask for any further relief.
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so.
Section 9: The Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation: A suit in which the right to property or to an office is contested is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of question as to religious rites or ceremonies.'
5. A combined reading of these sections will show that suits in which the right to office or property is contested are suits of a civil nature and are cognizable by the civil Courts unless barred by any express provisions of law or by necessary intendment thereof. The Courts can under Section 42 of the Specific Relief Act grant declaratory relief in this behalf at the request of the person entitled to a legal character or to any right to property,
The question is whether 'vrit' (birt) right, i. e, a right to priestly dues or voluntary offerings of tho Jujmans 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. It would appear from the plaint that the plaintiff seeks to be - declared to be entitled to a moiety of whatever offerings are made by the Jujmans on occasions of death at the cremation ground of Big Smashan.
He has also prayed for a permanent injunction restraining the defendant from preventing plaintiff from taking for himself the voluntary offerings made at the place. Besides, he has prayed for the recovery of a sum of Rs. 200/- and also offerings from the date of suit to the date of decree. His claim for the exclusive right of 'vrit' (birt) seems to rest on firstly that he is the owner and in possession of this smashan and secondly that the defendants are his agents to perform the ceremonies on his behalf and have a contractual obligation to pay half the income of the ceremonies.
W(c) have to examine whether either or any of these positions are established and whether the right that is claimed is a legal right or a right to office or property. It is manifest that the plaintiff claims to be the owner of the smashan which is admittedly in the bed of the river Moosa. Under the provisions of Section 24 of the Land Revenue Act (8 of 1317-F) ordinarily all places in the river bed will be the property of the Government unless any rights of individuals are established in relation fo the same.
The plaintiff seems to base his claim to this property on a sanad dated 27th Zilhej, 1239 Hijri purporting to be given by Raja Chandulal in the name of one of his ancestors. It is significant that no sanad was filed along with the plaint with the result that the defendants had no opportunity to aver anything against the same. Besides, the document said to have been filed is only a certified copy and there is no explanation why the original was not produced.
Even this copy is not verified or certified in accordance with law. Resolution No. 30 dated 15th Bahman I303-F lays down the procedure how the certificates of sanads should be verified and given. Thus copies of sanads will be void of any probative force or practical significance unless the procedure laid down for giving the same is fully complied with. Thus mere production of a certified copy is not sufficient unless it is duly certified by the department concerned.
In the absence of the original sanad or even a duly certified copy of it the grant in his favour or his alleged ownership of the river bed at the place of big smashan cannot be accepted. The plaintiff has not produced any reliable evidence as to his possession either. No water or electric bills have been produced. Nor is there any clinching evidence either oral or documentary in support of the plaintift No Jujmans are examined.
We are not prepared to hold that he is the owner of the river bed land, But the subject-matter of this suit is not the right to the land but (vrit) 'birt' right, i. e.. a right to the voluntary offerings made at the time of funeral ceremonies at the place. Several certified copies among which the letter of Kotwal of Balda is one have been produced in support of the contention that the ancestors of the plaintiff had been granted the rights of Pheckwai, Bytharni, etc., but even there it has been stated that the plaintiff has no right to interfere with the performance of the rituals at the place by any other persons whom the Jujmans may choose.
In other words, any Maha Brahmin of Jujman's choice can perform the funeral rites at that place and accept the offerings made by him. It is clear therefore that the plaintiff has failed to prove that the land to which he sets up his right is granted to him and is his own so that no cremation can be effected or funeral rites performed against his will or without his permission at that place. Secondly, the right to which he sets up his claim relates to offerings made by the Jujmans for the funeral rites performed by the Maha Brahmin.
It is not his exclusive right. Nor is it a tax or compulsory payment for cremating the dead on that land. It is a 'vrit' (birt) or priestly dues. Assuming that he has been engaging his Maha Brahmin agents from time immemorial to perform the funeral rites there, the question is whether by virtue of the same he acquired a right to share the offerings paid by the disciples to some other Maha Brahmins of their choice who are not plaintiffs agents.
Both the Courts, have held that the defendants who admittedly performed the ceremonies and received the offerings are not proved to be the plaintiffs agents. This question involves the examination of the nature and the implications of this so-called right, If it is a right of civil nature and has received judicial recognition, the suit is cognizable by the civil Court. It is therefore to be considered whether the birt claimed is property or a right to an office and whether it gives a legal character to the holder thereof.
The position is clear in law that the parties who require religious ceremonies to be performed for their benefit are at liberty to choose the priest by whom the ceremony shall be performed. See Dinanath Jha v. Ganesh Dutt Jha, AIR 1929 Pat 103. As observed in Hira Pandey v. Bachu Pandey, AIR 1916 Pat 215, so long as this inherent freedom exists there can vest in no one any legal character or any right to the office of performing ceremonies.
In Dwarka Misser v. Ram Protap Misser, 10 Ind Cas 41 (Cal), the observations were to the effect that voluntary offerings made to a priest who officiated at a sradh ceremony must be taken to have been intended for the very person who was actually performing ceremonies. In Gur Das v. Bhag, 11 Ind Cas 231 (Lah), where the question of right on tho part of a purohit to a birt or priestly offerings arose, it was held that that was DO right at all and does not amount to property for the purpose of Section 42 of the Specific Relief Act.
It may be noted that the plaintiff in the instant case claims not only a declaratory relief to the voluntary offerings made to the defendants who on account of disproof of the alleged contract may at the most be deemed to be usurpers but also for injunction to restrain them from all interference in receiving his share in future offerings. The authority in M. Venkata Rao, In Re, : AIR1954Mad346 is clear on the point that no such suit would lie. As we have already pointed out, in order to be civil right it should be a right to office or to property. In Srinivasa v. Tbimvengada, ILR 11 Mad 450 the test laid down by the learned Judges for deciding whether a suit is of a civil nature or not is
'Whether any specific pecuniary benefit is attached to the office claimable in the nature of wages, however small that benefit may be. If there be a right to such benefit, it is a question which the Courts are bound to entertain.'
6. The following passage in Srinivasachariar v. Srinivasa, 9 Mad LJ 355, is worthy of mention in this behalf:
'The term 'office' in the sense with which wo are concerned implies of course a duty in the officeholder to be discharged by him as such -- see if authorities were necessary, Kent's Commentary --where it is pointed out, offices consist in a right and a corresponding duty to execute a public or private trust and to take emoluments belonging to it.'
7. In Chitti Babu Mudaliar v. A. Venkatasubba Mudaliar AIR 1933 Mad 264 at p. 265, the observations made in this behalf are to the following effect:
'To constitute an office I think it will be essential to have some duties attached to it which the office-holder will be under a legal obligation to perform, the non-performance of which will be visited with penalties.'
8. In the light of the above principles, if the alleged birt is examined, it will be clear that it has no office at all. When the funeral rites may be performed by the Maha Brahmins of the choice of Jujmans and further when every priest in case of his refusal cannot be made to 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, when the plaintiff cannot exclude the other Maha Brahmins to perform the ceremonies it they are called upon to do so by the persons concerned, it cannot be said to be the property of the plaintiff. Thus the alleged birt right is 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. Our attention is invited to the case of Sardar Kunwar v. Gajanand, AIR 1942 All 320, but that case does not lay down that 'birt' in the circumstances of the present case is a right to office or property enforceable in a civil Court.
In that case the defendant was working under the name and colour of the plaintiffs birt Jujmani and was using the bahis, marks and other paraphernalia associated with the plaintiff's birt Jujmani. On that ground an injunction was given to prevent deception and fraud being practised on the Jujmans and to remove all misunderstanding for the Jujmans that in obtaining services of the defendant they were in fact getting the rights performed by or on behalt of the plaintiffs.
Such is not the case here. Gopal Rao y. Shiv Itamiah, AIR 1953 Hyd i is again an authority on the point that inasmuch as the performance of priestly rights require certain special qualifications and personal attainments, the Jujmans are at liberty to requisition the services of the priests of their choice even though ho may not be their hereditary priest or the descendant of such hereditary priest.
It was also held that no right is vested in any priest to insist that the rite should be got performed y the Jujmans through him and that in this view of the matter, the Patna, Lahore, Calcutta, Madras and Cutch High Courts are at one though the view of the Bombay High Court is at some variance as that Court chose to stick to the principle of stare decisis. Having regard to the consensus cf judicial opinion, it is clear that the right claimed is not a legal right or property.
9. Section 42 of the Specific Relief Act contemplates any legal character or a legal right to any property for a grant of declaratory relief. When birt right as discussed above is not a legal right nor in the nature of property, plaintiff is not entitled to any legal character in relation to that right as against the defendants. No doubt legal character recognisable by law could have as well, been created by an agreement.
Though the plaintiff had alleged that the defendants are the agents or servants for the performance of these rites, the evidence adduced is not only scanty but is without any probative force. Both the Courts are agreed that this fact has not been established and we see no reason to differ from this conclusion. Thus evidently the present case is net a case based on contract nor is it a case of right to participation by one co-sharer in the proceeds realised by the other co-sharers.
It is a case for a share against a Maha Brahmin in the voluntary offerings he received for the services that he rendered by performing the funeral rites at the instance of the Jujman. So, then, even assuming that the plaintiff has a birt Jujmani at that place, the only view that can be taken is that the defendants are the usurpers. Even so, since the plaintiff has no legal right to the voluntary offerings made, the suit is untenable.
10. We have already pointed out that the suit is not for the injunction that the defendants be restrained from interfering with the performance of funeral rites by the plaintiff but it is mainly for a declaration that the plaintiff is entitled to a share in the offerings by the Jujmans in connection with the funeral rites of the Raja Tarachand and also for injunction restraining the defendants from depriving the plaintiff of his share in the funeral rites that may be performed by the defendants.
The lower Court having regard to the scope ofthe suit could not pass a decree granting a declaratory relief to the plaintiff. When such a relief wasnot asked for, the suit ought to have been whollydismissed as has been rightly done by the lowerappellate Court. The appeal, therefore, fails andis dismissed. In the circumstances, there will be noorder as to costs.