1. This is a first appeal by defendant 1, Nand Kumar Dutt against a declaratory decree of the trial Court. The plaintiff Ganesh Dass brought a suit-for a declaration that property consisting; of 'paris' or shares in the offerings of a number of temples in Benares City was liable to attachment and sale in execution of a decree passed in favour of the plaintiff in Suit No. 141 of 1922 against the assets of one Kameshwar Panda in the hands of his daughter, defendant 2, Mt. Betwi. In appeal two grounds have been raised. Firstly that the lower Court was-wrong in holding that the sale deed of 10th September 1919, which was prior to the decree and was in favour of defendant 1 executed by Kameshwar Panda, his brother, was a bogus transaction; and secondly, that the Court below wrongly decided Issue No. 5 in favour of the plaintiff and that the Court should have held that these 'paris' are emoluments attached to an office and that the holder of the office can transfer his right in the office and the emoluments attached thereto to another co-sharer in the office but that the plaintiff who was a stranger-and a Bania could not claim the offerings-as detached from the office because it was-only by virtue of the services rendered as Panda that the emoluments fell due. In the question of the genuineness of the sale-deed the onus of proof lies on the plaintiff to show by prima facie evidence in the first place that the transaction was not genuine. The plaintiff gave evidence himself which has not been printed and in that evidence he stated that the sale deed was obtained for the purpose of the adjudication of Kameshwar as an insolvent and that the sale-deed was intended to defeat the claim of the plaintiff and other creditors. He was not able to give any definite details for these opinions except that he had made enquiries and had come to know that the debts were collusive and farzi. (After discussing the evidence as regards genuineness of the sale-deed the judgment proceeded). We, therefore, agree with the lower Court in finding, that this sale-deed in favour of Nand Kumar Dutt was a bogus transaction and Was not intended to pass the property in Question.
2. The point of law remains as to whether the plaintiff should receive a declaration that the 'paris' in question are liable to attachment and sale in execution of the plaintiff's decree. The case is not argued exactly on the lines set out in the first ground of the memorandum of appeal but it: was claimed that the 'paris' could only be transferred in favour of another co-sharer in the office and that they could not be put for auction-sale to the public. Now against this contention in the first place there is the sale-deed on which the title of the appellant is based. That sale-deed sets out on p. 41 that the property is one 'possessed by me exclusively in which I have no other co-sharer or partner and in respect of which I have got all sorts of rights of alienation' In para. 2 of the sale deed it is set out that the vendee 'is at liberty to exercise, any proprietary right he likes; he may mortgage, sell or make a gift, etc., of the same; he may do whatever he likes.' These expressions clearly set out that the property is one which may be transferred to any member of the public without any limitation whatever. The case for the appellant is now entirely different and he claims that the property is only transferable to a co-sharer. This claim was not put forward in the written statement which was filed on 22nd March 1930. It was only a year later, on 23rd January 1931, that a plea was put forward as follows:
Such paris at temples are not attachable and saleable according to law'. This was somewhat modified by a statement further down in the same pleading: 'The properties in dispute consist of paris at temples which are not usually attachable and saleable according to law.' Now a -certain number of rulings have been produced on each side. For the appellant reliance was placed on Durga Prasad v. Shamblku 1919 17 ALJ 842 which was a ruling in regard to the 'birt' of a Mahabrahmin and it was held that the 'birt' of a Mahabrahmin is a right to personal service and cannot be sold in -xecution of a decree for money. That was a ruling of the year 1919. It may be pointed out that the functions of a Maha-as decribed brahmin those of personal service. 'This birt, as we understand it, is the office of a Mahabrahmin who officiates at funerals of Hindus and performs certain ceremonies.' The next ruling on which learned Counsel relied was Puncha Thakur v. Bindeswari Thakur 1916 43 Cal 28. In that it was held that certain rights cannot be transferred because they are res extra commercium; for instance sacerdotal office Which belongs to the priest of a particular class. Similarly a right to receive offerings from pilgrims, resorting to a temple or shrine, is inalienable. The chance that future worshippers will give offerings is a mere possibility and as such it cannot be transferred. In Raghunath Vitthal Bhat v. Purnanand Saraswati Swami 1923 47 Bom 529 it was held that the duties of a hereditary office and the emoluments appertaining thereto remain in the family of the original grantee. If one of the members of the family wishes to get rid of his duties as well as his rights, he can only do so in favour of the remaining members of the family. The alienation of a share of one member of the family to an outsider is invalid even if made in favour of the original grantor of the office. That was a case of ' an alienation of the rights of a pujari who had been appointed by a Guru. Learned Counsel further relied on Nitya Gropal Banerjee v. Provashchandra Mukherjee 1920 47 Cal 990. There was an alienation in that case of a pala or turn of worship apart from the debutter land, and evidence was adduced of instances of alienation along with the debutter land.
3. It was held as a finding of fact that no custom of alienating the pala or turn of worship, apart from the debutter land, was established and that such an alienation was unreasonable. On the other hand reliance was placed for the' respondent plaintiff on Digambar Tatya Utpat v. Hari Damodar Utpat 1927 Bom 143, where it was held that the interest of an Utpat or priest's share in the nett balance of the offerings to the deity can be attached and sold in execution of a decree. The rulings stated that those rulings on which the appellant relied, which referred to the right of the officiating priest to worship the idol directly and to receive the offerings directly, were in the opinion of the Court clearly distinguishable from the question of whether a share of the offerings could be transferred. In Sukh Lal v. Bishambhar 1917 39 All 196. (a ruling of 1916) it was held that the rights of a Mahabrahmin could be mortgaged and in Lokya v. Sulli 1921 43 All 35, it was held that 'birt jajmani' was heritable and transferable. In Raghubar v. Rukmin 1918 20 PC 265, at p. 267 a distinction was drawn between the office and the receiving of a share of offerings. We consider that the case which governs the matter is that reported in Balmukand v. Tula Ram 1928 50 A11 394. In that case at p. 399 it has been laid down as follows:
A distinction must be drawn between cases in which emoluments are attached to a. priestly office, and the cases in which the offerings are made to a deity and the persons who receive the same have not to render services of a personal nature as a consideration for the receipt of the offerings. The emoluments of the former kind are not, in the absence of a custom or usage to the contrary, ordinarily transferable, for the simple reason that they are inseparably connected with a priestly office arid it is contrary to public policy to allow such offices to be transferred to a person not competent to perform the worship, either by private sale or by sale in execution of a decree;
and on p. 400:
But when the right to receive the offerings made at a temple is independent of an obligation to render services involving qualifications of a personal nature, such as officiating at the worship, we are unable to discover any justification for holding that such a right is not transferable. That the right to receive the offerings, when made, is a valuable right and is property, admits of no doubt and, therefore, that right must, in view of the provisions of Section 6, T.P. Act, be held to be transferable, unless its transfer is prohibited by the Transfer of Property Act or any other law for the time being in force.
4. We adopt this doctrine and accordingly we apply this rule of law to the present case. In the present case learned Counsel for the appellant relied on the fact that in the sale-deed on p. 41 at line 10 it was stated;
and the paris (turns) of officiating at the worship of deities specified below and taking offerings made at them.
5. Now it is to be noted that this is merely in the recitals and that when the operative portion of the sale-deed is examined it does not say more than that there is a transfer of 1/5 share in the houses, the turns of the worship of the deities and the fixed rate cultivating holdings. It is-not stipulated that the transferee should take part himself in the worship of the deities nor is there any mention of personal service. In the evidence of Nand Kumar, the appellant, there is no statement made that there is any necessary connexion between the receipt of this share of the offerings and the actual performance of any worship. On the contrary he says on p. 11, line 10:
There are 18 or 20 servants who look after the paris on our behalf, . About 4 or. 5 of them are regularly paid 7 or 8 rupees per month The Remaining servants get something out of the offerings.
6. One of these servants has been produced, Ganesh, and he states:
I am in the service of Nand Kumarand look after his paris.... I get Rs. 10 a month. There, are two or four other servants who are also get-ting Rs. 10 per month.
7. Evidence was given in; regard to Kameshwar and it was stated that he was a profligate person, and so his brother the appellant says and there is no statement made by the appellant that Kameshwar himself did perform any service. We consider therefore that in the present case-it has not been proved that there is any connexion between the receipt of this share of the offerings and the performance of the service in the temples. No-doubt in certain cases such a connexion. has been proved in regard to other temples; for example in Haridas Haldar v. V.Charu Ghandra Sircal 1933 60 Cal 1351, it was held that at the temple of Kali Ghat in Calcutta there was such a connexion and therefore that a transfer must be made to a limited class and that these rights to a share of the offerings were attachable in execution of a civil Court decree but the sale must be to a limited class. In the present case it has not been proved that there is any such custom or connexion between the share of the offerings and the right to officiate as priest. Accordingly we do not consider that the decree granted by the lower Court to the effect that the property is liable to attachment and sale should be in any way modified.
8. Learned Counsel for the appellant has argued a point of law which is not in the grounds of appeal and was not in his written statement. The point is that although the appellant can have the right of collections which had been received during the lifetime of Rameshwar and which might be attachable in execution of the decree against his assets still the share of the offerings could not be attached as those offerings were future income to accrue. We do not think that this argument can be accepted for various reasons. For one reason the execution is sought against the assets of Kameshwar Panda in the hands of his daughter, defendant 2. What was in the hands of defendant 2, the daughter of Kameshwar, was by inheritance his share, and as the share produced a certain annual income that income may be attached as it is one of the assets of the deceased. Secondly the appellant has no right to put forward such a claim as he has not put forward any claim that he is entitled to any share by inheritance from the deceased. For these reasons we cannot agree with this argument. We therefore dismiss this appeal with costs.