Tudball and Kanhaiya Lal, JJ.
1. This Letters Patent appeal arises out of a suit brought by the plaintiffs, who are the daughters of one Dangal, for partition of certain movable and Immovable properties and also for partition of what is known as 'birt jajmani' and the books relating thereto. The court of first instance divided up all the property except the birt jajmani in respect of which it held that it was not partible, but it gave the plaintiffs a declaration that they were entitled to a certain share therein, On appeal the District Judge set aside the declaration. On second appeal to this Court that decision was upheld.
2. It appears that the three brothers, Dangal, Panjal and Sikandar were the owners to the extent of one-third each in this birt jajmani. We may note that the present appeal relates only to the latter class of property and the appellants ask this Court to restore the declaration granted by the court of first instance, Dangal entered into an agreement with the sons of Panjal on 30th of April, 1906, under which (he being an old man) those sons agreed to collect his one-third share in the birt jajmani, to retain one-fifth of the income as recompense and to pay four-fifths to Dangal On his death the four-fifths of Dangal's share was to go one-half to Musammat Kalawati, the widow of Dangal's son and one-half to his three daughters; and on the death of Musammat Kalawati, the whole of Dangal's share was to be divided into two equal parts; one-half was to go to the sons of Panjal and the other half was to go to the present plaintiffs. Dangal also left a will in favour of his daughters and it was on that will and the agreement that the daughters now seek for a declaration of their title to a one-sixth share in the whole of the birt jajmani, being half of their father's one third share. The learned Judge of this Court who dismissed the appeal says in his judgment: 'Sikandar was no party to the deed. They failed to show that they have any right to share in the offerings, considering that they take no part in the bathing ceremony. No authority has been cited in support of the contention of the appellants. The appeal fails and is dismissed with costs,' This class of property has repeatedly been the subject-mutter of decisions by the various courts in India and Che rights of the heirs of these Chaubes and other persons, the owners of birt jajmani, have repeatedly been up-hell. In the case of Sukh Lal v. Bishambhar (1916) I.L.R. 39 All. 196, a mortgage of such rights was upheld, and in the case of Narayan Lal Gupta v. Chulhan Lal Gupta (1911) 15 C.L.J. 876, the whole subject of these rights was discussed at considerable length by Mr. Justice Murerji. There is also an unreparbed decision of a single Judge of this Court in Section A, No. 569 of 1903. There can be no doubt that the right of birt jajmani has been held by court to be heritable and sometimes transferable. In the present case we can see no reason whatsoever why the daughters of Panjal should not inherit the estate of their father in this class of property. If there had been no will and no agreement, they would have bean entitled to the whole one-third share. They claim only a one-sixth share. Sikandar is entitled only to a one-third, share in his own right, the sons of Panjal are entitled to a one-third in their own right and one-sixth under the terms of the agreement. As the appellants are satisfied with the declaration of their right all that is necessary for us to do is to declare that right. We, therefore, allow this appeal and set aside the judgment of this Court and the decree of the court below and restore the decree of the court of first instance. The appellants will have their costs in this and the lower appellate court.