The lower Appellate Court has not given a finding oa the question whether the custom set up by the plaintiff in para. 3 (9) of the plaint has been proved to exist. We must call for a lading on the question and also on the question as to the amount due to the plaintiff on account of the offerings.
The parties will not be allowed to adduce fresh evidence. The findings are to be submitted in one month from the date of this order. One week will be allowed for objections.
In compliance with the order contained in the above judgment the District Judge of Ganjam submitted the following
This appeal has been sent back by the High Court for findings on two points.
The first point is 'whether the custom set by the plaintiff in para. 3 (9) of the plaint has been proved to exist.' Not the least difficult part of my task has been to ascertain what is the custom sat up in para. 3 (9) of the plaint. It is clearly a family custom so much is clear. Plaintiff a family and defendant's family are two divided branches of what was once a joint Hindu family. It is a family of gurus. Though divided, plaintiff's late husband and 1st defendant had joint disciples.
My finding, therefore, is that the first part of the custom alleged (marked A) is both admitted and proved. As regards the second part (marked B), it is not proved that a widow continues to enjoy a share of the offerings made by disciples who were joint to her husband and another but that it is proved that she may appoint a sagotra to continue her husband's work as guru and to receive offerings from her husband's former disciples.
Judgment.--The plaintiff is the Widow of a divided brother of the 1st defendant. The plaintiff's deceased husband and the 1st defendant were gurus who offered spiritual advice and ministrations to a large number of persona. Though divided, the plaintiff's late husband and the 1st defendant had joint disciples. The plaintiff alleged a family custom that if one guru dies his widow should continue so enjoy a half share of the offerings (technically called sishyadayan) made by joint disciples and collected by the other guru. The suit out of which this second appeal arises was instituted by the plaintiff to recover her portion of the offerings said to have been collected by the 1st defendant basing her right on the alleged family custom. The 1st defendant contended that the offerings made by the sishyas do not form heritable property and that he had not made any collections. The District Munsif held that the alleged custom was proved but was of opinion that the offerings were not heritable property, that they were not made to the 1st defendant for the plaintiff also, and that there was no evidence for the plaintiff regarding the amount collected by the 1st defendant. He, therefore, dismissed the plaintiff's claim for the sishadayam said to have been collected by the 1st defendant. On appeal the learned District Judge without giving a definite finding on the question of custom affirmed the judgment of the. District Munsif stating that the plaintiff cannot succeed in enforcing her right in a Court of Law against the 1st defendant for her share in, the family offerings.
Before finally disposing of the case we called for a finding from the lower Court as regards the existence of the alleged custom. The learned District Judge has now found that the custom has not been proved.
He has also found that the offering received by the 1st defendant each yea? amount to Rs. 70. On these findings two questions have been argued before us:
1 That there is ample evidence to prove the existence of the alleged family custom, and
2 that even if the custom is proved, a suit to recover a share of the offerings ia not maintainable in a Court of Law.
As regards the existence of the custom alleged, we think the finding of the learned District Judge cannot be supported. The plaintiff has given documentary an Well as oral evidence in support of the Custom. Exhibit B. dated 29th July, 1876 has not been correctly understood by the learned District Judge. That document evidences a transfer by a widow called Likshminarasamma Ammavaru of her right to receive sishaydayam. The trans feree under Ex. B in his turn transferd under Ex. C. his share of the income derived under Ex. B.P.W. No. 2 says that it is the custom of the widow to get the husband's right of collecting offerings from sishyas. It is important to notice that the 1st defendant has not anywhere definitely denied the existence of the custom. It is also admitted that the plaintiff may, if she chooses to do so, herself collect the offerings from her husband's disciples. We agree with the Munsif s view that the evidence proves the existence of the alleged custom.
The next question for consideration is whether a suit of this nature can be maintained, On this point various decisions have been brought to our notice. Generally stated, in all these cases, a distinction is drawn between suits for the recovery of emoluments attached to a religious office and those brought for the recovery of purely voluntary offerings not so attached to a temple, mosque or any such institution.
In Tholappala Charlu v. Venkata Charlu 18 M. 62; 5 M.L.J. 20D ; 6 Ind. Dec 748 the plaintiff as Anangundi Raja guru claimed to be entitled and sued for a declaration of his title, to the hereditary office of priest of Samayacharam. The defendants claimed the office and had collected voluntary contributions in the character of the holders of such office. In holding that the suit will not lie the learned Judges, pointed out that the office was not connected with any particular temple and that no pecuniary benefit is attached to the office, the only emoluments being voluntary contributions, while the duties of the office are to exercise spiritual and moral supervision over people who wear a certain caste mark in a certain tract of country. Following this decision it was held in Channu Dat Vyas v. Babu Nandan 6 Ind. Cas. 223 ; 32 A. 527 ; 7 A.L.J.520 that a suit by a plaintiff will not lie for a declaration that he had the right to perform certain religious pageants and to receive subscriptions in connection therewith claiming to restrain the defeadants from interfering with that right on the ground that tha pageants were not connected with any panicular temple, shrine or sacred spot and that the plaintiff and his ancestors did not hold any office by virtue of which they were under any obligation to perform such pageants. Saripaka China Mahadeva Vazulu v. Muthura Suryaprakasam : AIR1915Mad597 also recognised the distinction which we have pointed out, The suits for a share of the offerings held maintainable in Bheema Charyulu v. Ramanuja Charyulu 17 M.L.J. 493 and Dino Nath Chuckerbutty v. Pratap Chandra Goswami (5) were suits by persons entitled to an office, the emoluments of which were the voluntary offerings offered to the deity. The distinction that we have pointed out is referred to in Dino Nath Chuckerbutty v. Pratap Chandra Goswami 27 C. 30 ; 4 C.W.N. 79 ; 14 Ind. Dec. 21 where their Lordships refer to the nature of the plaintiff's claim in the case before them thus:
What is claimed in the present suit ia a right to officiate as shebait or priest, at the worship performed by votaries at the foot of a certain tree, and to share the offerings made at such worship, the right to officiate as such shebait being claimed by the plaintiff as an hereditary right be longing to the members of a certain family of which he himself is a member.
It is unnecessary to refer in detail to the other cases, cited before us. We may point out that the decisions in Hira Pandey v. Bachu Pandey 35 Ind. Cas. 345 ; 1 P.L.J. 381 ; 2 P.L.W.M and Dwarka Nath Misser v. Ram Protap Misser 10 Ind. Cas. 41 ; 13 C.L.J. 449 ; 16 C.W.N.347 also amply support tha respondent's position. The difficulty in the way of the plaintiff ia that she has not been able to establish the existence of any office in connection with which the voluntary offerings are made by the disciples. It is conceded that she cannot institute any suit against tha disciples themselves for enforcing the payment of their offerings. In view of the decisions of this Court, we are satisfied that a suit of the nature brought by the plaintiff will not lie in a Civil Court. We must, therefore, dismiss this second appeal with costs.