Henry Richards, Kt. C.J.
1. This appeal arises out of a suit in which the plaintiff claimed to recover from the defendants certain offerings which had been made on the occasion of the death of one Rai Bahadur Debi Singh, It appears that the plaintiff and the defendant are both members of the same family of Maha-Brahmans, the common ancestor of which was one Dhan Singh. Both the courts below have found that an arrangement had been come to between the members of the family with a view to the division of the offerings. Certain members of the family were to have certain days of the month and certain other members, other days. Both the courts below have found that the offerings in question were made on a day which belonged to the plaintiff. But the plaintiff's suit was dismissed upon the ground that the offerings in question were personal offerings, made to Fakir Chand, the defendant.
2. It is admitted that so far as the donor of these offerings is concerned, no court could interfere to compel him to make the offerings to any particular individual. On the other hand, it has been admitted that an arrangement between the Maha-Brahmans as to the division of the offerings between themselves is perfectly legal. This has been decided in two cases [see Doorga Pershad v. Budree (1874) 6 N.W.P., H.C. Rep., 189, (191) and Oochi v. Ulfat (1898) I.L.R., 20 All., 234]. It seems to me that the whole case turns upon the nature of the agreement and the nature of the gift. There cannot be the least doubt that unless the gift in question was within the scope of the arrangement which the courts below have found existed between the parties, the plaintiff cannot succeed. The agreement was not in writing. It is stated in some what general terms in the plaint and evidently the court below accepted the statement in the plaint as being the terms of the agreement. The object of the agreement was beyond doubt to prevent disputes as to the division of the offerings. As the family increased, some such agreement was obviously very necessary. In my opinion the only fair interpretation to give to the agreement is that the descendants of Dhan Singh agreed amongst themselves that all the offerings that were made upon the occasions of death to any members or member of the family should be divided in accordance with the agreement. As the learned advocate for the plaintiff said in the course of the arguments, the agreement amounted to this, namely, that each member or branch of the family agreed to refrain from taking the offerings on the days assigned to the other member or branch. It is said that this agreement could only apply to offerings that were made to the family as such. This seems to me to be rather a restricted view to take. If it was open to the members of the family to exclude from the scope of the arrangement all gifts which any individual might prevail on the donor to say was to be his, it would mean that the agreement would be practically futile. While, on the other hand, if the agreement is interpreted to include all gifts that were made to any of the members of the family of Dhan Singh, it might reasonably carry out the object of the arrangement, namely, to avoid disputes.
3. I next come to the nature of the gift. It must at once be admitted that if this gift was made for a purpose disconnected with cremation ceremonies, the plaintiff would have no right. But reading the evidence of Raghubir Narain Singh it seems to me perfectly clear that this gift was a gift directly in connection with cremation ceremonies, that it was made to one of the members of the family of Dhan Singh, and that the only reason why it was made to Fakir Chand instead of the plaintiff was because the donor has been informed that it would be more efficacious if the gift was not divided and if it was not given to a female. It seems to me that if the offering was of a nature which was included in the agreement 'between the parties the wishes of the donor could not regulate the rights of the parties to the present suit. Fakir Chand might have refused to take the gift if the donor coupled the donation with the condition that he must keep it entirely for himself. I think that so long as the agreement continued to exist, Fakir Chand having taken the gift was bound to make it over to the plaintiff in accordance with the agreement. For these reasons. I think the decision of the court below was erroneous, and I would allow the appeal.
4. I regret I cannot agree with the learned Chief Justice in the conclusion at which he has arrived. I fully agree with him that the whole case turns upon the nature of the contract, a breach of which is the foundation of the plaintiff's suit, and also on the nature of the gift made by Raghubir Narain Singh on the occasion of his father's death. It is alleged in the plaint that Dhan Singh, the ancestor of the family, was the Maha-Brahman of the particular village in question and that offerings made to this family of Maha-Brahmans were offerings to the members of the family as such. In order to prevent disputes between the members of the family as to the division of the offerings, they entered into an arrangement by which individual members of the family were to take offerings given on certain dates, but it seems to me from the nature of the offerings which, according to the plaintiff's own case, were agreed to be divided, that the offerings which were to be divided were the offerings made to individual members of the family as such members and not offerings made personally to individual Maha-Brahmans who were members of the family. If the contract between the parties was that they were to divide the offerings given on a particular date to any member of the family, whether as representing the family, or in his individual capacity as a Maha-Brahman, the plaintiff would of course be entitled to the offerings received on the particular day which was the day on which her turn for receiving offerings accrued. In the present case neither of the courts below has found that the contract between the parties was of the wide nature just now mentioned, and as I have already said, it was not the plaintiff's own case, as laid in the plaint.
5. If then the contract related to offerings made to the family as such, any present made to an individual member of the family in his personal capacity would not fall within the scope of the contract. In the present case, according to the evidence of Raghubir Narain Singh and according to the findings of both the courts below, the present made by him was a present individually to Fakir, defendant, and the donor distinctly stated at the time of the gift, that the offerings were not to be divided among the Maha-Brahmans and they were not to go to a female member of the family. It is clear from his evidence, which I think has been rightly interpreted by the court below, that the offerings in question were made to Fakir in his individual capacity, and not as representing the Maha Brahman family of which the parties were members. That being so, I think the plaintiff is not entitled to the offerings claimed and her suit has been rightly dismissed. I would dismiss the appeal.
6. I concur with the judgment of Mr. Justice Banerji. There can be no doubt that where there is an agreement among Maha-Brahmans, that offerings shall be taken by a particular man on a particular day, the agreement is one which will be enforced in law. But in the absence of any special stipulation, such an agreement can only refer to offerings made to the general body or to the whole family, as the case may be, of Maha-Brahmans. Where a client wishes to benefit a particular Maha-Brahman by making him a special gift, there is nothing to prevent his doing so, and in such a case no other Maha-Brahman can claim any share in the gift. It seems to me as clear as possible in this case that it was the deliberate wish of the donor not only to benefit the defendant but to exclude the plaintiff. I do not think it is necessary to consider what the motives were that animated him. It is sufficient to say that he knew that if the gift were made to the whole family the plaintiff might get a share of it. Not wishing that she should, he deliberately elected to make the gift, not to the whole family, but to the defendant individually. No doubt the gift was what might be called a funeral gift, but it was open to anyone to make a funeral gift either to a family of Maha-Brahmans, or to an individual Maha-Brahman as he might wish. In this case, I think, he made his offering to an individual Maha-Brahman, and the plaintiff is, therefore, not entitled to. any share. I would, therefore, affirm the decrees of the lower courts and dismiss the appeal.
7. The order of the Court is that the appeal is dismissed with costs.