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Bishandas and anr. Vs. Durga Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Appeal No. 428 of 1964
Judge
Reported in1971WLN392
AppellantBishandas and anr.
RespondentDurga Prasad and ors.
DispositionAppeal dismissed
Cases ReferredIn Thathachariar v. Singarachariar A.I.R.
Excerpt:
.....120 & 124 - 'hereditary office--explained--failure to show that suit is for possession of hereditary office--held, article 124 does not apply.;a hereditary office is one, the right to which descends on the death of the holder in accordance with the law of inheritance. however, where succession to the office is by nomination or appointment and there is no right to the office independent of such nomination or appointment the office is not hereditary.;the question of hereditary office is not a pure question of law, and the determination of the question whether a particular right constitutes a hereditary office depends primarily on acts.;the plaintiffs have failed to show that their suit is for possession of a hereditary office. a natural corollary of this funding is that article..........to hold on the bare allegations as contained in the pleadings of the parties that such a vague right is hereditary office, assuming for the sake of argument, that what the plaintiffs claim in the present case is an office. the question still remains as to what are the characteristics or trappings of the so called office? is it inherited by males only or also by females also, if it is inherited by females than what is the nature of their right? does this office devolve strictly according to the principles of hindu law or any other rule of inheritance or it is governed by any valid and immemorial custom? all these questions do crop up for returning an answer to the question whether the right claimed by the plaintiffs in the present case is a hereditary office? unfortunately for the.....
Judgment:

C.M. Lodha, J.

1. The suit out of which this appeal arises was instituted by the plaintiffs Bishandass, Chhanganlal and Mst. Champa for declaration that they are the nearest reversioners of the deceased Mst. Ancha and are entitled to get the turn of worship due to the deceased Mst. Ancha. They also claimed rendition of account with respect to the income recovered by the defendants on account of the turn of worship of the deceased Mst. Ancha, and claimed a decree for Rs. 500/- tentatively subject to such amount as may be ultimately found due.

2. The plaintiff's case as set out in the plaint is that the Sewapuja in the temples of the former State of Bikaner owned by the erstwhile said State and private parties, used to be performed by the Mundra Sewags only and the turn of Mst. Ancha came after every two years for 7 days. It was alleged that Mst. Anch died on 13.6.1950 and the plaintiffs being her nearest reversioners were entitled to succeed to her and to do Sewapuja and realise the income from the same on account of Mst. Ancha's turn. It was alleged that the plaintiffs approached the Devasthan Department of the State of Rajasthan by an application dated 5 3 1951 for grant of permission to do Sewapuja in Mst. Ancha's turn, but the said Department turned down the plaintiff's request and directed them by its order dated 23.12.53 to establish their right in a competent Civil Court. Hence the plaintiffs filed the present suit in the Court of Munsiff, Bikaner on 25.3.1958.

3. The suit was resisted by the defendant-respondent Durga Prasad on a number of grounds. It was pleaded by him that he had been adopted by Mst. Ancha who had also executed a will in his favour. It was also pleaded that the plaintiff's suit was barred by limitation.

4. After recording the evidence produced by the parties the learned Munsiff, Bikaner dismissed the plaintiff's suit as barred by limitation. He also held that the defendant Durga Parsad had succeeded in proving his adoption to Mst. Ancha and consequently on merits too the plaintiff's claim was liable to be dismissed.

5. Aggrieved by the judgment and decree of the trial court the plaintiffs filed appeal in the Court of District Judge, Bikaner, who upheld the judgment and decree by the trial court on the ground that the suit was barred by limitation even though on merits he disagreed with the findings given by the trial court, and held that the defendant Durga Prasad had failed to prove that he had been adopted by Mst. Ancha, or that any valid will had been executed in his favour by Mst. Ancha. In these circumstances the plaintiffs Bishan Dass and Mst. Champa have filed this second appeal and the plaintiff Chhaganlal has been impleaded as a proforma-respondent.

6. The only point for decision in this appeal is whether the plaintiff's suit has been correctly dismissed as barred by limitation? Learned Counsel for the appellants has urged that the suit is for possession of 'hereditary office' of Archak or Pujari and is consequently governed by Article 124 of the Limitation Act of 1908 which was in force at the time the suit was instituted. This Article prescribes a period of 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. It is submitted that the suit was admittedly presented within 12 years of the death of Mst. Ancha and is consequently within limitation It is contended on behalf of the appellants that the learned District Judge had committed an error of law in applying Article 120 of the Limitation Act, 1908 to the present case, and in dismissing the plaintiff's suit as barred by time on account of its having been instituted after more than 6 years of Mst. Ancha's death.

7. On the other hand it is argued by the learned Counsel for the respondents that it had not been pleaded by the plaintiffs that the turn of Mst. Ancha to perform Sewapuja in the temples of the former State of Bikaner or for the matter of that her right to recover income during the turn of her Sewapuja was a hereditary office. It has also been urged that it is a complete misnomer to call the turn of Sewapuja available to Mst. Ancha as an office and much less a hereditary office.

8. It may be observed that this aspect of the case was not at all present before the plaintiff's mind when the plaint was drafted. In para No. 10 of the plaint it was pleaded that the suit is governed by Articles 120 and 124 of the Limitation Act and in the paragraph relating to the cause of action it was stated that the cause of action arose to the plaintiffs on 22-12-1953 when a direction was given to the plaintiffs by the Devasthan Department to file suit in a court of competent jurisdiction to gat their right established. It appears to me that the question of hereditary office has been introduced by the plaintiffs simply in order to bring their suit within limitation by taking advantage of the period of 12 years prescribed in Article 124 of the Limitation Act. It cannot be gainsaid that this question whether the right of Mst. Ancha to perform 'Sewapuja' in the temples for 7 days during every period of 2 years was a hereditary office or not is a mixed question of fact and law. In ordar to get over the objection regarding lack of allegations in this respect, the learned Counsel for the appellants invited my attention to paras 4 and 5 of plaint. In these paras it has been averred that Mst. Ancha had a right to do 'Sewapuja' or get the same done by somebody on her behalf for a period of 71 days during every 2 years and that after her death the plaintiffs became entitled to get all her property and rights as her legal heirs. Learned Counsel has also relied on the pleas contained in the written statement to show that it was admitted and in any case assumed by the defendants also that the dispute was regarding the possession of a hereditary office. In this connection it may be noted that the defendants have stated in para No. 13 of the written statement that according to the custom Mundra Sewags alone have been doing 'Sewapuja' in the temples of the town of Bikaner and nobody else can do it. It has been further stated that it is only the right of the holder of the turn to do the Sewapuja or to get it done by somebody else on his behalf, and that after his death the fruits of his turn of Sewapuja are distributed among his heirs. From the aforesaid pleadings in the written statement the learned Counsel wants me to infer that it was impliedly admitted by the contesting defendant Durga Parsad that the right of Mst. Ancha to do Sewapuja or to recover income of her turn was a hereditary office. However, I find it difficult to accede to this submission. The term hereditary office has not been defined in any law. The office is a position which has some duties attached to it and its existence involves some duties to be performed by the holder of the office which are enforceable by law, custom or usage. In the absence of any such duties there could be no office for which a suit can lie in a civil court. In Thathachariar v. Singarachariar A.I.R. 11925 Mad. 377 it was observed that an office in connection with temples and other such institutions must be regarded as a bundle of duties liable to be performed by the same persons under a particular designation and carrying with it certain emoluments. It may, however, be noted that the existence of the emoluments, is not, an absolute necessary factor in an office.

9. A hereditary office is one, the right to which descends on the death of the holder in accordance with the law of inheritance. However, where succession to the office is by nomination or appointment and there is no right to the office independent of such nomination or appointment the office is not hereditary.

10. It is not at all clear from the pleadings of the parties as to what are duties attached to the so called office of doing Sewapuja in the present case? Learned Counsel for the appellants placed before me a few authorities to show that Archakship and sebaitship have been considered hereditary office. That may be so but whether in a particular case the right to do Sewapuja or to get the same done is a hereditary office or not would depend upon the allegations made and proof led in the case? In the present case the right to do Sewapuja has been alleged to be in respect of not any particular idol or idols but all the temples generally which were in existence in the former State of Bikaner be they public or private. It is not possible to hold on the bare allegations as contained in the pleadings of the parties that such a vague right is hereditary office, assuming for the sake of argument, that what the plaintiffs claim in the present case is an office. The question still remains as to what are the characteristics or trappings of the so called office? Is it inherited by males only or also by females also, if it is inherited by females than what is the nature of their right? Does this office devolve strictly according to the principles of Hindu Law or any other Rule of Inheritance or it is governed by any valid and immemorial custom? All these questions do crop up for returning an answer to the question whether the right claimed by the plaintiffs in the present case is a hereditary office? Unfortunately for the plaintiffs the statement given by the plaintiff Bishanadas even does not lead to the conclusion that the right of Mst. Ancha to do Sewapuja which is being claimed by the plaintiffs was a hereditary office It is stated by him that after Mst. Ancha's death her turn of Sewapuja which has been described as 'Bari' devolved on Smt. Champa because Mst. Champa was Mst. Ancha's husband's cousin's wife. He has also stated that the defendant Durga Prasad obtained order from the Devasthan Department to do Sewapuja in Mst. Ancha's, 'Bari'. It may be stated here that no effort has been made on the part of the plaintiffs to produce a copy of the order of the Devasthan Department which may show as to on what grounds Durga Parsad's right in this connection was recognised? Bishandass has further stated that Mst. Champa got Ancha's Bari as she happened to be nearest in relation to Mst. Ancha. In the cross-examination he has stated that by force of custom no other person except a Mundra' Sewag can inherit the 'Bari' even though the heir in a particular case may be some body else, meaning thereby that all other property of the 'Bandar' that is holder of the turn to do Sewapuja may go to any other heir but the 'Bari' of Sewapuja can be in herited only by Mundra Sewags. It is further stated by him that this custom has been in vogue since times immemorial. On being further cross-examined on the point he has deposed that he had filed objections in the Devasthan Department regarding Mst. Arena's 'Bari' only as Am Mukhtiyar of Mst. Ancha. He has also clearly stated that if the Devasthan Department so desired can remove the Pujari or may forbid him to do Sewapuja. He has also admitted that if the Devasthan Department objects the 'Bandar' cannot do Sewapuja. It, has been further admitted by him that the Pujaris have no proprietary right to any of the temples in respect of which the right to do Sewapuja has been claimed and the right of the Pujari is only to take away the offerings of the day. P.W. 2 Jiyaram has stated that after the death of Ancha Mst. Champa was entitled to get Mst. Ancha's Bari and Durga Parsad is also entitled io it but first is the right pf Mst. Champ, then of Teja and then of Balu, and that: in the presence of Mst. Champa, Teja and Balu have no right with respect to Mst. Ancha's 'Bari'. In the course of cross examination he has further stated that without the permission of the Devasthan the 'Baridar' cannot transfer the 'Bari' nor can mortgage the same. He has further stated that instead of getting salary the Government gives food to the Baridar Pujaris by way of emoluments. The witness further goes on to state that if Mst. Ancha had gifted her 'Biri' to anybody else the plaintiffs Bishsndass and Mst. Champa would not have got any right to it. The statement of this witness goes to show that with the permission of the Devasthan Department of the Government the 'Bari' can be alienated or mertgaged.

11. A bate reference to the statements of the aforesaid witnesses Bishancas and Jiya Ram would go to show that the nature of the right claimed by the plaintiffs cannot be considered as a hereditary office This evidence relied upon by the plaintiff-appellants is in my view not only most vague indefinite, uncertain and unsatisfactory, but furnished absolutely no material for recording a finding as to the question whether the right, claimed by the plaintiffs in respect of Mst. Ancha's Bari is in the nature of hereditary office? Here it may not be out of place to point out that the right of transfer by sale, gift or mortgage is incompatible with the very conception of hereditary office. While I say so I am aliva to the view taken in some authorities where in the rights attached to a religious office have been held transferable on account of custom But as I have already observed in the present case it is not all known whether it is by virtue of any rule of inheritance or by force of any custom that the 'Bari' of Mst. Ancha is alleged to be a hereditary office. I may here state that I have discussed the evidence produced by the plaintiffs themselves in this connection to show that apart from the fact that the allegation of hereditary office being conspicuous by its absence in the plaintiffs even in their evidence the plaintiffs have failed to make out a care of hereditary office. Thus in nut-shell the plaintiffs have neither taken the plea of hereditary office nor is here any issue on the point, nor have they succeeded in establishing it in the course of their evidence. As, already stated above the contention raided on behalf of the appellants that the defendants had impliedly admitted that the claim was with respect to hereditary office is also devoid of force. No doubt the question of hereditary office had attracted the attention of the parties, as well as the courts below, the plaintiffs at no stage made any prayer for amending the plant by making necessary allegations in this respect. I may here point cut even at the risk of repetition that the question of hereditary office is not a pure quest on of law, and the determination of the question whether a particular right constitutes a hereditary office depends primarily on facts.

12. I, therefore, agree with the learned District Judge that the plaintiffs have failed to show that their suit is for possession of a hereditary office. A natural corollary of his finding is that Article 124 of the Limitation Act, 1908 has no application to this case. The courts below have applied the residuary article, Article 120, which prescribes a period of six years and under which the suit is admittedly barred by limitation. Learned Counsel for the appellants failed to point out any other Article by which the suit may be govern d so as to be within limitation.

13. The result is that the suit was rightly dismissed as barred by time and no interference is called for with the judgment and decree under appeal. Consequently, I dismiss the appeal, but without any order as to costs.

14. Leave to appeal to Division Bench is prayed for, but is declined.


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