1. These are two second appeals by the defendant Baijnath arising out of two separate suits id both of which the plaintiffs were the same, Tholia and his son Ram Nath. Tholia having died, his son Brahm Nath has been brought on record as his legal representative in the second appeal. The brothers Ram Nath and Brahm Nath are thus the plaintiffs-respondents in both these appeals.
2. Both the suits were dismissed by the trial Court but decreed on appeal by the District Judge of Chamba. The present second appeals were thereupon filed by Baijnath in the Court of the Chief Judge of Chamba. Under Notfn. no. 3. 79-15/48, dated 14-1-1949, read with Section 36, Chamba State Courts Act, the Chief Commissioner of Himachal Pradesh referred to the Judicial Committee for its opinion cases that were pending in the Chief Court of Chamba. That is how these second appeals are now before me as Judicial Committee.
3. The two suits were for recovery of value of offerings made on the occasion of Navamala ceremonies, corrupted in local parlance into Nawala ceremonies. The ceremony in one case was performed at the house of one Ashwani Kumar and in the other in that of one Mataditta, and they were the respective co defendants with Baijnath in the two suits. In the suit against Ashwani Kumar one Turath Nath officiated for Baijnath, and therefore he was also joined as a defendant. Tholia and Ram Nath claimed to be hereditary yogis entitled to preside over the said ceremonies in Chamba town, where both Ashwani Kumar and Mataditta resided, to the exclusion of everybody else. It was pleaded on their behalf therefore that the yajmans Ashwani Kumar and Mataditta had no right to call Baijnath at the Navamala ceremonies at their houses, and Baijnath had no right to preside over them and appropriate the offerings. The defence was that the plaintiffs were not the hereditary yogis, and that the yajmans in Chamba town were not bound to call any particular yogi to preside over such ceremonies, but that they were at liberty to accept at such ceremonies the ministrations of any yogi they chose. The lower appellate Court has passed decrees in both the suits against the alleged usurper Baijnath for certain sums of money, being price of offerings at the aforesaid ceremonies, and he has, therefore, filed the present second appeals.
4. My learned predecessor-in-office remanded the case to the Subordinate Judge for recording additional evidence which may be produced by the parties on the question of custom prevalent in Chamba town. The appellant (Baijnath) and respondents (Ram Nath and Brahm Nath) being the same in both the cases, this additional evidence was jointly recorded by the Subordinate Judge in both the cases For that reason, and because common questions of law and fact arise in both the cases between the same parties, this judgment will govern both the appeals.
5. There is no evidence worth the name that the plaintiffs are the hereditary yogis of the families of Ashwani Kumar and Mataditta. That is, however, immaterial because the suits have been fought on the larger issue of whether the plaintiffs were the hereditary yogis entitled by custom to preside over the Navamala ceremonies throughout Chamba town to the exclusion of other yogis and irrespective of the wishes of the yajmans. And that is the only question for determination in these appeals.
6. The additional evidence produced on behalf of the defendant appellant Baijnath consisted of the statements of seven witnesses, but most of the instances of performance of Navamala ceremonies by yogis other than the plaintiffs cited by them related to the period subsequent to the institution of the present suits One of those witnesses Devi Lal cited some other instances also, but it was not clear as to whether they related to a period before the present suits. In the suit against Ashwani Kumar, however, the defendant did originally produce two witnesses who spoke of having called the defendant-appellant Baijnath to preside over Navamala ceremonies at their houses, and those ceremonies appear to have been performed before the institution of the present suits. It may be said that on the whole the evidence produced on behalf of the defendant-appellant was inconclusive. It was, however, for the plaintiffs-respondents to prove the aforesaid custom. Their evidence consisted of the statements of nine witnesses in the suit against Ashwani Kumar and of four witnesses in that against Mataditta. Besides these witnesses originally produced the plaintiffs respondents produced 12 additional witnesses after the remand. A number of these witnesses for the plaintiffs have admitted that the yajmans are free to call yogis of their choice. For instance, plaintiffs' witness Pandit Shiv Lal stated as follows in the suit against Ashwani Kumar:
'The position with regard to Briteshwari (which is the same thing as yajmani) is that if the yajmans invite we go. If they do not invite then it is their sweet-will.'
Amongst the new witnesses produced on behalf of the plaintiffs Jai Kishan, who is himself a priest by profession, has stated that there are 30 or 35 families in Chamba of which he is the priest, but his going or not going there depends upon the sweet-will of those families. Another witness for the plaintiff named Thakur Das, who professes to act as a priest in 50 families in Chamba, makes a statement to the same effect. He makes a further statement that the defendant appellants' position is that of a Guru and the plaintiffs' that of Chelas. Plaintiffs' witness Sukhdev is a yajman and he has stated that his Purohit is one Vednidb, and that the latter cannot force his ministrations on him if he does not wish to call him. It is thus clear that there is no custom in Chamba whereunder yogis can force their ministrations on their yajmans, but that the latter are at liberty to call any yogis they like to preside over Navamala ceremonies at their houses. Such a right has been recognised in the neighbouring State of Punjab, vide Gursahai v. Karam Chand, 8 P. R. 1901: (136 p. L. R. 1901). That ruling is to be preferred, so far as this State is concerned, to a ruling of the Bombay High Court reported as Ghelabhai v. Hargowan Ramji, 36 Bom. 94 : (12 I. C. 928) cited on behalf of the respondents. There is a ruling of the Chief Judge of Chamba State, equivalent to a High Court, dated 30th of Magh, 1998B., wherein it was held that there was no local custom entitling hereditary priests to officiate at obsequies ceremonies in spite of the will of the yajman.
7. Mr. Vyas, the learned counsel for the plaintiffs respondents referred, me to the judgment, Ex. P. C., of the Chief Judicial Officer of Chamba dated 12th of sawan, 1982B, That was a decision between the late father of the plaintiffs, Tholia, and the late father of the defendant-appellant, Madho, and it related to the right of presiding over Navamala ceremony at Sarol, a village a few miles away from Chamba. It was held in that case that Tholia bad no right to preside over Navamala ceremonies outside Chamba town. It was further laid down in that case that he had the right of officiating at the ceremonies only in Chamba town. That was, however, not a question in issue in that case. Therefore that finding cannot have the effect of res judicata in the present suit. The learned counsel for the plaintiffs-respondents cited in this connection the ruling reported as Bisham-bhar Lal v. Brij Rattan Lal, A. I. R. (26) 1939 ALL. 203 ; (180 I. C. 608). That was, however, a case where the plaintiff's suit was held to be barred under Expln. 4 to Section 11, Civil P. C., because of a decision in a previous suit wherein his grandfather had failed to take as a ground of defence the right claimed by the plaintiff in the subsequent suit, Here, it was not necessary for Tholia to allege his rights in respect of Navamala in Chamba town in the said suit because the point in issue between the parties did not relate to Chamba but to a village outside the town. It appears that in the same suit Madho, father of the present appellant, gave the statement that Tholia a had only the right of officiating at such ceremonies in Chamba town. It was argued by the learned counsel for the plaintiffs-respondents that the present defendant is bound by that admission of his father. That admission is, however, not conclusive and is capable of rebuttal, and it has been sufficiently rebutted by the evidence produced in the present case. A reference was also made by the learned counsel for the respondents to an observation in the judgment of the trial Court in the aforesaid suit between Madho and Tholia relating to Navamala rights in village Sarol. The observation relates to an order passed in 1970B, by the then Ruler of Chamba in a suit between the same parties. The order was to the effect that Tholia will have the right to officiate at Navamala,. ceremonies in Chamba town, and that Madha would have no such right. No copy of that judgment has been produced, so that it cannot be said whether it related to Navamala rights-in or outside Chamba town. It does not also appear whether the said order, was passed on foot of a custom or a grant. It may be that the aforesaid order was passed by the then Ruler of Chamba only in connection with that suit as a fiat of his will without there being either a grant or a custom to support the order. It is not possible, therefore, to take the said citation as any authority for purposes of the present suit.
8. In the aforesaid ruling of the Punjab High Court the exclusive right claimed by the present plaintiffs was characterised as trenching unduly on the rights of the yajmans to employ whatever priest they chose That was as long ago as 1900. Subsequently, the right was adversely commented upon by the Chief Judge of Chamba in the aforesaid ruling dated 20-10-1998B. There is all the greater reason now after the passing of the Constitution of India not to uphold the right claimed by the plaintiffs. That right infringes the fundamental right of freedom of religion conferred on all persons under Article 25 of our Constitution. It provides, inter alia, that subject to public order, morality and health, and to the other provisions of this part, all persons are equally entitled to the right freely to practise religion. True, under Article 19 (I) (g) of the Constitution all citizens have the right to practise any profession, or to carry on any occupation, trade or business; but that is subject to reasonable restrictions in the interests of the general public under Clause (6) of that Article. In other words, the plaintiffs can only practise their profession or carry on their occupation of yogis subject to their not trespassing on the freedom of the yajmans to practise their religion in any manner they choose. Even if there had been prevalent in Chamba any such custom as is alleged by the plaintiffs, it would have been a custom inconsistent with the provisions of part in of the Constitution and therefore void and unenforceable under Article 13 of the Constitution. It may be noted that under, Clause (3) of Article 13, law includes custom or usage.
9. In the result, therefore, I bold in the first place that the customary right claimed by the plaintiffs has not been proved, and in the next that even if it had been proved it would have been void and unenforceable under Article 13 of one Constitution. The two appeal are accordingly allowed, the judgments and decrees of the lower appellate Court are set aside, and both the suits are dismissed with costs throughout, The Hon'ble Chief Commissioner is advised accordingly.