Patna High Court
Dinanath Jha And Ors. vs Ganeshdutt Jha And Ors. on 18 January, 1929
Equivalent citations: 116IND. CAS.513, AIR 1929 PATNA 103
JUDGMENT Jwalal Prasad, J.
1. This is an appeal by the plaintiffs and it arises out of a suit brought by them to recover from defendants Nos. 1 and 2 their share of their prohiti perquisites received by the said defendants from the Bettiah Raj during the years 1328 to 1330, by declaring that the orders of the Manager of the Court of Wards, Bettiah Raj, and the Revenue Authorities depriving the plaintiffs of their share in the perquisites were illegal and ultra vires being contrary to the Hindu religion as ordained by the Sastras.
2. The genealogy given below is undisputed:
GHANSHYAM JHA ___________________________|_____________________________ | | Bhutnath Jha Ram Bhadra Jha 4 annas 4 annas | ___________________________________|______________ Appoch Jha | | | Balbhadra Jha Jaibhadra Jha, Subhadra Jha, Sakti Nath Jha 1 anna 4 pies 1 anna 4 pies 1 anna 4 pies.
Adinath Jha _____|___________ |
(sister's son of | | Anirudh Jha
Sakti Nath Jha) Balgopal Jha Balmakund Jha |
| | | |
Dina Nath Jha, Hira Lal Jha, | |
(plaintiff No. 1). plaintiff No. 2) | |
| |
__________________| |
_______________|__________________ |
| | |
Rajindra Jha Damodar Jha, |
(plaintiff No. 3.) (plaintiff No. 4.) |
|
________________|
____________________________|_________________________________
| | | |
Gamesj Datt Jha, Harnandan, Srinandan Sheonandan
(defendant No. 1) (defendant No. 5) (defendant No. 6) |
| |
| ___________________|_____
| | |
| Deokinandan Jha, Jasodanandan Jha
| (defandant No. 7) (defandant No. 8.)
|
________________|___________________________________
| |
Rodranandan Jha, Krishumnnandan Jha,
(defandant No. 9) (defandant No. 10)
3. The above genealogy shows the relationship between the plaintiffs, defendants 1st party Nos. 1 and 2 and defendants 4th party Nos. 5 to 10. They are descendants of Ghanshyam Jha, except plaintiff No. 1 whose father Adinath Jha was the sister's son of Sakti Nath Jha, great grandson of Ghanshyam Jha. Defendant No. 4 is Maharani Janki Kuer, widow of Maharaja Sir Harindra Kishore Sinha, the late proprietor of the Bettiah Raj. She is the present proprietress of that estate which is under the Court of Wards and consequently she has been made defendant through the Manager, Court of Wards. The Manager himself is defendant No. 3. Defendants 5th party Nos. 11 to 15 are residents of Sugawn and are accordingly called in this litigation the Sugawn Ojhas. They were formerly the sole purohits of the Bettiah Raj and were in charge of the performance of the Raj religious ceremonies and receiving 16 annas of the prohit fees and perquisites. For the better and more efficient performance of those ceremonies the late Maharaja Rajindra Kishore Sinha brought Ghanshyam Jha from the Nepal Darbar and appointed him Raj prohit, giving him half the share of the emoluments, the other half being appropriated by the Sugawn Ojhas whose right to the moiety share is not in dispute in this case. The 8 annas share of Ghanshyam Jha was shared equally by his two eons Bhutnath Jha and Rambhadra Jha to the extent of 4 annas each. Saktinath Jha grandson of Bhutnath Jha, embraced Islamism. Consequently he was dismissed from the prohitship by an order of the late Maharaja Sir Harindra Kishore Sinha in parwana Ex. 1 dated 7th July, 1887, and in Ms place his sister's son Adinath Jha father of plaintiff No. 1, was appointed for the time being in 1892. Saktinath Jha instituted a suit against Anirudh Jha, father of defendant No. 1 representing a branch of the family of Ghanshyam Jha and others for his share of the prohiti perquisites, disputing the status of the plaintiff and his father Adinath Jha as prohits of the Raj and asserting that he was the prohit. On behalf of the defendants it was asserted that the plaintiffs had no right to the perquisites nor the prohiti right by reason of the appointment made by the late Maharaja. Maharaja Sir Harindra Kishore Sinha died in 1300, leaving two widows the elder of whom died in 1303 04. The present Maharani Janki Kuer thus became the sole proprietress of the Bettiah Raj and the Court of Wards assumed charge of the estate in 1897. She by a parwana (Ex. 1-A) dated 8th Asin 1308 (1901) appointed the plaintiff No. 1 Dina Nath Jha, minor son of his Adinath Jha, prohit in place of his deceased father Adinath Jha, but as he was minor at that time his duties were directed to be performed by defendant No. 1 Ganesh Dutt Jha grandson of Rambhadra Jha by giving him 2 annas share out of the 4 annas share of Dinanath Jha for performing the work on behalf of the minor who was directed to be restored to his full share of 4 annas on his attaining majority. On 17th April, 1905 the Maharani by a parwana (Ex. 1-B) is said to have dismissed Ganesh Dutt, Jha defendant No. 1 of his right to officiate as priest, and the plaintiff says that this was because he was suffering from white leprosy but the parwana does not say that this was the reason for his dismissal.
4. Maharani Janki Kuer defendant No. 4 was declared, on 21st January, 1911, by an order (Ex. E) under Act XXXV of 1858, lunatic and incapable of managing her affairs, and the Manager of the Court of Wards, who was already in charge of the Maharani's immoveable properties consisting of the Bettiah Raj estate, under the orders of the Court of Wards took charge of her personal properties also under Section 9, Lunacy Act. Mr. Lowis, Manager of the Court of Wards, by his order of 26th March, 1912, dismissed the plaintiffs and appointed Ganesh Dutt Jha, defendant No. 1 as the sole prohit to the exclusion of the other members of the family of Ghanshyam Jha, This order was confirmed by Mr. Whitty, Manager of the Court of Wards, on 18th October, 1918, and was upon representation of the plaintiffs confirmed by the higher Revenue Authorities including the Board of Revenue by an order, dated 2nd May, 1921. The Board of Revenue observed that on account of jealousy and austerity among the prohits joint performance of the ceremonies by the prohits was not possible. The plaintiffs say that the orders of the Manager of the Court of Wards and the Revenue Authorities were ultra vires and the plaintiffs have been wrongfully deprived of the prohiti perquisites to the extent of their share of 5-annas 4-pies which originally they used to enjoy and defendant No. 1 is wrongfully receiving and appropriating the same.
5. Defendant No. 1 and his son defendant No. 2 are the principal opponents of the plaintiffs' claim. The Manager of the Court of Wards defendant No. 3 and the Maharani defendant No. 4 through her Manager have filed separate written statements supporting the case of the defendants. The defendants deny the plaintiffs' right to act as prohits or to claim the emoluments of the same, asserting that they were rightly dismissed and defendant No. 1 was lawfully appointed and is exclusively entitled to perform the ceremonies and to appropriate the fees and perquisites.
6. The Courts below have upheld the contention of the defendants and dismissed the plaintiffs' suit. The plaintiffs have come up to this Court in second appeal.
7. The plaintiffs claim 5-annas 4-pies out of 16 annas of the prohiti fees and perquisites (dakhshina) received by defendants Nos. 1 and 2 on the ground alleged in para. 11 of the plaint that the plaintiffs' share was "illegally appropriated by the defendants", inasmuch as the plaintiffs along with the defendants were the hereditary priests or prohits of the Bettiah Raj and they could not be "dismissed from the office without their consent even by jajman (the proprietress, Bettiah Raj defendant No. 4) unless there be any fault and disability"in them to perform the religious ceremony. In support of this reliance has been, placed by the learned Advocate on behalf of the plaintiffs upon the following texts, Manu, Chap. 8, verse 388; Vishnu Samhita, Chap. 5, verse 113; Yajnavalkya book 2, Ch. 20, verse 237; Vivada Chintamani (Translation by P.C. Tagore, 1863 Edition, page 68) and Narada, Ch. 3, verses 9 to 11. They all are to the same effect. It will, therefore, be enough to quote from Manu who says that a jajman (institutor of religious Ceremony) who forsakes a ritvik (officiating priest) and an officiating priest who forsakes a jajman each being able to perform his work and not contaminated, defiled or degraded (by grievous crimes) must each be fined one hundred panas. Indisputably all the texts give a complete right to the jajman to discard a priest who is incompetent to perform the ceremonies or is degraded or defiled. The Vyavastha on the point quoted in the Full Bench case of Ramakanta Sharma v. Govind Chunder Sharma (1852) S.D.A. 398 at p. 400 Page of (1852) S.D. A. Ed. runs as follows:
An officiating priest who is afflicted with disease, one who hath not performed expiation though degraded from the rank of his tribe; one who is insane, one anathematized, one who seeks refuge with the enemy of his jajman, for the purpose of working his ruin, one who mars the reputation of his jajman by a disclosure of his faults, one destitute of the knowledge required in the Sastra and Sastranga for the discharge of the sacerdotal functions, may be discarded by his jajman.
8. Vivada Chintamani (page 63) which the learned Advocate says, is the highest authority in the Mithila School from where the parties come, also says that a vicious or ignorant priest may be discarded. As also a jajman vicious or miserly may be discarded by the priest.
9. Manu in Chap. 3 refers to the things which disqualify a Brahman from being invited to a sradh repast or being the recipient of sradh oblations or offerings. He should not be degraded, sexless, afflicted with skin disease, should not have clotted hairs, should not be arrogant and wicked, should not have obstructed or diverted a watercourse; one who rears sheep, buffaloes, and has not studied the Vedas, or who is a servant of the King or village community, or who has renounced religious rites or who lives by worshipping divine images. To invite him or making offerings to him destroys all the merits of the ceremony both in this and the next world. The qualifications of a competent Brahman are equally of an indefinite character as enjoined by the Smritis. The priest must be conversant with the Vedas and should lead a virtuous life in accordance with the Smritis and Sruitis. I have quoted from Manu. The texts of the other Rishis are to the same effect. The responsibility of appointing a competent Brahman as a priest or ritvik rests entirely upon the jajman or the institutor of sacrifices and ceremonies.
10. Manu in Chap. 2, verse 143, says that a ritvik or priest is a Brahman who being appointed by another (jajman) does for him the religious sacrifices. The word 'vrit', (appointed) is significant. The Mitakshara commenting on Yajnavalkya, book 1 verses 34 and 35, relating to the ritvik says "Ritvik is one who is appointed to perform sacrifices." Mimansa Darshana, Chap. 3, Section 7 says, varanena ritwijah kriyanta, that is, a ritvik or priest is made by appointment. The Mitakshara is the law that is followed in this part of the country. It also lays down as to who should be appointed as prohit in Yajnavalkya, verse 313, Chap. 1. He should be knower of the Vedas and rules of sacrifices.
11. Now, a priest or ritvik may have been appointed by the previous generations by the jajman himself or may be one who of his own accord performs the function. The last one is not to be taken into account, for the simple reason that he was never appointed. Narada in Chap. 3, verse 10, thus classifies the priest under three heads: (1) honoured by previous generations, (2) one appointed by the jajman himself and (3) one who performs the functions of a priest of his own accord through friendship. The first one is by reason of having been honoured by the former generations called hereditary. The Smritis say that a jajman forsaking a faultless priest who was honoured by the former generations or was appointed by himself shall be punished with fine. Subject to the penalties by way of atonement the power of dismissing a priest rests with the jajman. The hereditary priest is so-called by reason of his having been appointed by the former generations, as Vivada Ratnakar, relied upon by the learned Advocate as an authority for the Mithila, itself puts it in the explanatory note given at page 376 of Colebrooke's Digest of the Hindu Law, Vol. 1, dealing with the verse of Narada quoted above. Says, Vivada Ratnakar "Honoured by former men"; honoured as officiating priest by former generations; an hereditary priest. However, both the hereditary priest as well as those appointed by the sacrificer or jajman stand on the same footing in the matter of dismissal. As to whether a priest, of whatever class he may be, is competent to perform the ceremonies and whether he is faultless or not must rest entirely upon the conscience, faith and judgment of the jajman, and a Court of Justice will be incompetent to deal with such a question. He may be guided by his sentiments of good and evil, or even by caprices and superstitions. A priest should always be friendly with the jajman and should not in any way mix with his enemies according to the texts. He should not speak ill of his jajman or countenance anybody speaking ill of him. Now, who can judge of the relationship between the priest and the jajman, except the parties themselves? This is a delicate matter. To put it bluntly, a jajman may think that the prohit is inauspicious and the religious ceremonies performed by him in the past, though with due regard to the Sastraic rules on the subject, have proved inefficacious and ominous and that further performance by him would lead to disastrous effects. The ceremonies are performed for the good of the jajman in this and the next world. Who can force the jajman to have the ceremonies performed by a priest in whom he has no faith? A divergent view has, however, been taken in the Bombay High Court and in Western India. These authorities have all been referred to in the recent case of Manghirmal v. Jethanand 56 Ind. Cas. 683 : 13 S.L.R. 56. All the other High Courts have taken the view referred to above. In this Court in the case of Hira Pandey v. Bachu Pandey 35 Ind. Cas. 345 : 1 P.L.J. 381 : 2 P.L.W. 390 it was held that the freedom of the subject entitles all Hindus to call in at any time their own particular priests or any priest whom they may themselves prefer to perform any office. In the case of Lachman Lal Pathak v. Baldeo Lal Thathwari 42 Ind. Cas. 478 : 3 P.L.W. 136 : 2 P.L.J. 705 : (1918) Pat. 50 (at page 710 Page of 2 P.L. T.-- Ed. ) Sir Edward Chamier, C. J., summarizes the case-law on the subject in the following words:
There seems to be some difference of opinion in Bombay on the subject, but it has been held by the Calcutta, Madras, and Allahabad High Courts for many years that in the absence of a definite contract a prohit or mahabrahman is not entitled to a decree against rival prohit or mahabrahman for a share in the offerings received by him from persons alleged to be jajmans of the plaintiff, the ground of the decision being that voluntary offerings may be given to anyone to whom the jajmans choose to give them: see Gourmani Deli v. Chairman of the Panihati Municipality 6 Ind. Cas. 864 : 12 C.L.J. 74 : 14 C.W.N. 1057, Dwarka Misser v. Ram Protap Mister 10 Ind. Cas. 41 : 13 C.L.J. 449 : 16 C.W.N. 347, Oochi v. Ulfat 20 A. 234; A.W.N. (1898) 23 and Saripaka China Mahadevavazulu v. Muthura Suryaprakasam 24 Ind. Cas. 204 : 26 M.L.J. 482 : 1 L.W. 389 : (1914) M.W.N. 379. One result of this view seems to be that the prohit or mahabrahman holds no office.
12. Though at one time the Calcutta High Court had taken a contrary view vide. Radha Krishun v. Shyam Sarma (1818) 2 Sel. Rep. 332, the Fall Bench decision of that Court in Hargboind Sharma v. Bhowani Prasad (1850) S.D.A. 296 settled the law. The question was again fully dealt with in the later Full Bench case of Rama Kanta Sharma v. Govind Chunder Sharma (1852) S.D.A. 398 and in Jawahir Misser v. Bhagu Misser (1857) S.D.A, 362. The later decisions are Gourmani Debi v. Chairman of the Panihati Municipality 6 Ind. Cas. 864 : 12 C.L.J. 74 : 14 C.W.N. 1057 and Dwarka Missir v. Ram Protap Misser 10 Ind. Cas. 41 : 13 C.L.J. 449 : 16 C.W.N. 347. Therefore, so far as these Provinces are concerned, it is well-settled that a jajman has a right to appoint any priest he chooses to perform the religious ceremonies and to dismiss any priest who formerly used to perform the ceremonies whether appointed by himself or by the former generations, that is hereditary priest; and this is, in my view, in accordance with the correct interpretation of the texts on the subject.
13. The plaintiffs, however, have failed to show that they have any hereditary right to officiate as priests. On the other hand, the holders of the Bettiah Raj have according to the plaintiffs' own showing exercised the right to appoint priests according to their own will and choice. The plaintiffs claim through Ghanshyam Jha, but Ghanshyam Jha himself was brought in from the Nepal Darbar by the late Maharaja Rajindar Kishore Sinha and was appointed to perform the ceremonies to the exclusion of the former prohits, namely, the Sugawan Ojhas, to the extent of 8 annas share. Adinath Jha, father of plaintiff No. 1 himself, was appointed in place of Saktinath Jha by the late Maharaja Harindra Kishore Sinha by parwana, dated 7th July, 1887, although he could have no hereditary right to succession, he being only sister's son of Adinath Jha. The appointment again was not hereditary, but only personal and for the time being as the parwana itself shows.
14. The plaintiffs then say that even if the jajman had a right to appoint and the office went by appointment, the Maharani by parwana (Ex. A-1), dated 28th Asin,1301, appointed plaintiff No 1 to perform the duties of prohit and on 17 th April, 1905 she dismissed defendant No. 1 from the office by parwana (Ex. 1-B). The other plaintiffs were allowed to continue to act as prohits. Thus, it was argued that even if the office went by appointment, the plaintiffs were duly appointed and have a right to perform the ceremonies in preference to defendant No. 1, who was dismissed by the Maharani, the real jajman, and hence the defendant No. 1 illegally performed the ceremonies and appropriated the perquisites due to the plaintiffs. The Manager of the Court of Wards, however, by his order of 6th March, 1912, dismissed the plaintiffs and appointed defendant No. 1 as the sole prohit. The order was confirmed by the higher Revenue Authorities. The Maharani defendant No. 4 has been declared lunatic and incapable of managing her affairs and the management of her personal properties has been undertaken by the Court of Wards under Act XXXV of 1858. The Maharani in her written statement has repudiated the plaintiffs' claim and has virtually accepted the dismissal of the plaintiffs and the appointment of defendant No. 1. She, no doubt, has appeared through the Manager of the Court of Wards, as that is the only way in which she could appear in this case and, therefore, it cannot be said that the order of the Court of Wards dismissing the plaintiff and appointing defendant No. 1 as prohit is ultra vires or illegal. The Maharani is incapable of acting herself for any purpose including the appointment and dismissal of the Raj prohits.
15. The claim of the plaintiffs to recover the perquisites received by the defendants is in any view of the case unsustainable. Admittedly the plaintiffs did not perform the ceremonies. They were performed by defendant No. 1. The plaintiffs could only succeed upon the ground of a partnership or contract express or implied with one who performed the ceremonies for a share in the profits. Such is not the case of the plaintiffs. In fact the case is that defendant No. 1 performed the ceremonies and appropriated the fees in his own right and in denial of the plaintiffs' right. No question of any agreement between the plaintiffs and the defendant No. 1 to divide the perquisites does arise in this case and it has been openly repudiated by the learned Advocate on behalf of the plaintiffs. The fees or perquisites were paid to the defendant as wages or hire for work performed. They are an acquisition by defendant No. 1 by reason of his having performed the ceremonies. They belong to him exclusively. Now anything acquired by skill or knowledge called Vidya Dhanam belongs exclusively to one who acquires it: Manu, Chap. 9, verses 206-08, It is not divisible nor is it descendible to heirs. Such is the view also of the other texts. The Mitakshara which is the law applicable to the case commenting upon Yajnavalkya, Chap. 2, verses 118-119 relating to gains of science or by knowledge quotes from Katyayana to the effect that gratuity for performing a sacrifice or whatever has been acquired by officiating as a priest or received as a fee or gratuity from a person employing him to officiate at a sacrifice are similar to wages or hire and belong exclusively to the priest. No claim on the score of heredity can be laid with respect to such gains. Therefore, the plaintiffs have no right to recover the fees, and perquisites received by defendant No. 1 for officiating as a priest to the Bettiah Raj. They do not claim anything from the Bettiah Raj itself, and in fact they cannot do so for they are the voluntary gifts made by the Raj to the priest. The Full Bench case of Jawahir Missir v. Bhagu Missir (1857) S.D.A, 362 already referred to is exactly in point as well as the earlier Full Bench case of Hargovind Sharma v. Bhawani Prasad (1850) S.D.A. 296 already referred to. Mookerji, J., in the case of Dwarka Misser v. Ramprotap Misser 10 Ind. Cas. 41 : 13 C.L.J. 449 : 16 C.W.N. 347 goes further and says that an agreement between members of a family to divide the income of priesthood regardless of who may actually officiate cannot be obligatory on parties and their successors for all times and in spite of wishes of those who want to terminate them. Therefore, whatever be the previous history of the priesthood in the Bettiah Raj and whatever might have been the arrangement for the division of the perquisites in respect of the ceremonies by the defendants of Ghanshyam Jha through whom the plaintiffs claim, it can be of no avail in the present claim of the plaintiffs which repudiates all suggestions of an agreement between the plaintiffs and the defendant for the division of the perquisites and in fact defendant No. 1 performed the ceremonies in open denial of the plaintiffs' right and in assertion of his own on the strength of the appointment made in his favour by the Bettiah Raj.
16. The result is that the plaintiffs are not entitled to any relief, and the suit has been rightly dismissed by the Courts below. The appeal is accordingly dismissed with costs.
Courtney-Terrell C.J.
17. I agree.