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Bishambhar Vs. Sukh Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1917)ILR39All196
AppellantBishambhar
RespondentSukh Lal
Cases ReferredPuncha Thakur v. Bindesri Thakur
Excerpt:
act no. iv of 1882 (transfer of property act), sections 6 and 58 maha bahmin--mortgage by--of right to receive dues of office. - - section 6 of the transfer of property act has been quoted to us, and it is said that this so-called right of niadar was at best a 'mere possibility' within the meaning of clause (a) of that section, and that the 'mere possibility' was incapable of being transferred......arises out of a suit brought on foot of an alleged mortgage. the mortgagor and mortgagee were both maha brahmins. this is a sect which perform certain ceremonies and duties at funerals of hindus. they generally carry out their duties at some place frequented for the purpose of cremations and other funeral ceremonies. it frequently happens that the maha brahmins between themselves arrive at some arrangement by which certain maha brahmins are allowed the exclusive right of taking offerings and remunerations on particular days. the mortgage in the present case took the form of a mortgage of the right to the dues and offerings on six days every two months. the defendants are the collateral heirs of the deceased mortgagors, but they themselves claim to have succeeded to the very rights (such.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of a suit brought on foot of an alleged mortgage. The mortgagor and mortgagee were both Maha Brahmins. This is a sect which perform certain ceremonies and duties at funerals of Hindus. They generally carry out their duties at some place frequented for the purpose of cremations and other funeral ceremonies. It frequently happens that the Maha Brahmins between themselves arrive at some arrangement by which certain Maha Brahmins are allowed the exclusive right of taking offerings and remunerations on particular days. The mortgage in the present case took the form of a mortgage of the right to the dues and offerings on six days every two months. The defendants are the collateral heirs of the deceased mortgagors, but they themselves claim to have succeeded to the very rights (such as they are) which belonged to Niadar, the mortgagor. The court of first instance dismissed the claim. The lower appellate court decreed the plaintiff's claim in part. The learned Judge of this Court confirmed the decree of the lower appellate court. The contention at both hearings in this Court, and apparently also in the lower appellate court, on behalf of the defendants, is that the mortgage itself is absolutely null and void, that it did not operate to transfer any right, nor had Niadar any light which he was capable of transferring by mortgage or otherwise. It has been fairly and properly admitted here that our decision in the present appeal ought to be exactly the same as if the suit was one between the original mortgagee and the original mortgagor. Section 6 of the Transfer of Property Act has been quoted to us, and it is said that this so-called right of Niadar was at best a 'mere possibility' within the meaning of Clause (a) of that section, and that the 'mere possibility' was incapable of being transferred. It cannot be disputed that certain offices are performed by Maha Brahmins at the funerals of Hindus, nor can it be disputed that Maha Brahmins receive for those duties certain remunerations. The amount largely depends upon the surrounding circumstances, the generosity of the relative carrying out the funeral, and, very probably, the wealth and position of the deceased. The offerings in this sense are not purely voluntary. No doubt there is no obligation upon any parson to employ any particular Maha Brahmin. No Maha Brahmin could bring a suit to compel any person carrying out the funeral to employ him, and it is probable that in the absence of a special agreement a Maha Brahmin could not bring a suit against another Maha Brahmin for fees received. That the right to receive the dues at funerals is looked upon by the Maha Brahmins themselves as an existing right is to some extent illustrated by this very case. The mortgage was made as far back as the year 1906, and the defendants themselves consider that they have succeeded to the rights of Niadar as his heirs. A very similar question arose in the case of Raghoo Pandey v. Kassy Party (1883) I.L.R. 10 Calc. 73. That was a suit to redeem a mortgage of these very rights. There the plaintiff was seeking to pay back money in order that he might) be restored to rights which had been transferred by way of mortgage. The defendants were actually resisting redemption, considering that they had acquired rights which they would rather keep than receive the plaintiff's money. This case was decided in the year 1883, and we refer to it at the present moment as showing to what an extent these rights have been recognized by the Maha Brahmins themselves. We have already pointed out that they consider the rights of so substantial a nature that they frequently enter into arrangements between themselves specifying particular periods when different Maha Brahmins may be present at the cremation grounds to perform the offices and receive dues. We have been referred to several case-amongst others, the case of Puncha Thakur v. Bindesri Thakur (1915)28 Indian Cases 675. There the plaintiffs, the sons of a deceased priest, brought a suit to be restored to a three-anna share in the offerings at a certain temple. Their father had made a mortgage of the three-anna share. The court of first instance had given the plaintiffs a decree for possession, and this decree was affirmed by the Calcutta High Court. The learned Judges considered that the offerings at the temple were not a class of property which could be transferred by way of mortgage and that accordingly the mortgage was null and void. We may remark that the offerings at a temple do not stand on the same basis as remuneration which Maha Brahmins receive for the services they perform at Hindu funerals. Furthermore, in that case whilst the learned Judges held that neither the mortgage nor the sale conveyed any rights, nevertheless the plaintiff appears to have been successful in getting a decree for possession of these very rights. On the whole we see no reason to disagree with the decision of the lower appellate court and the learned Judge of this Court. We accordingly dismiss the appeal with costs.


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