HANMAPPA UDANDAPPA PUJARI Vs. HANMANTGAUDA PUJARI

JUDGEMENT

(1.) THE question for consideration in these second appeals is whether the right to a turn of worship in the temple of Shri Maruti Dev of Tulsigiri can be transferred. THE temple is endowed, and for that purpose a sanad was issued by Government to the temple in the name of its vahivatdar. THE parties to this litigation are admittedly members of vahivatdar family. In accordance with a custom which is common in such cases the members of the family divided up their turns by a fixed arrangement, and under that arrangement one Ramangouda assumed an obligation to worship with a corresponding right to receive the offerings made by the worshippers for six months in every ten years. One Hanmappa, also a member of the family, had a right of worship amounting to one-fifth of the whole, and to him Ramangouda transferred his one-twentieth share in the obligation of worship and the right to receive the offerings. It may be presumed that the purchase price was based upon the estimated value of the offerings, since the land belonging to the temple, which in practice is managed by the vahivatdars as if it were their private property and has been divided up for that purpose, was not transferred along with the pujarki rights. THE result of this transaction has been two suits, one by the son of the vendor for an injunction to restrain the vendee from receiving offerings and interfering with the exercise of the plaintiff's own pujarki rights, and the other by the vendee to restrain the vendor's son from interfering with the right of worship which he had bought. THE trial Court decided both suits in favour of the vendee, but the lower appellate Court reversed the decision, dismissed the vendee's suit, and allowed the suit by the objector, and the result is the present two appeals to this Court by the vendee. THE lower appellate Court held that the pujarki right in dispute was a public office and as such inalienable either by reason of Section 6 (f) of the Transfer of Property Act, which prohibits alienations of public offices, or on the ground of Hindu law as given in the decided cases. Other questions arose before both the lower Courts, but it is not necessary to refer to them in these appeals.

(2.) THE first question which we have to decide is whether the pujarki right which has been the subject of the transaction in suit is a public office or not. We have heard a good deal of argument on that point based upon the nature of the grant and the nature of the duties which the holder of the office has to perform. Looked at from that point of view the question is not easy to decide, but in our opinion it can be satisfactorily decided on the basis of this right of worship being admittedly partible. It is beyond dispute, and none of the parties contested the fact, that the office of worship as well as the management of the temple itself have been divided among the members of the family. It is an essential characteristic of a public office that it cannot be divided, and we doubt very much if a public office properly so called can ever be heritable. In any case no office which is capable of being divided (as this has been divided) can be treated as a public office at all. THE provisions of the Transfer of Property Act prohibiting alienations of public offices were applied to the Hindu law in 1929, and the division which has taken place was long before that date. Hereditary offices such as those coming under the Watan Act are statutory exceptions to the ordinary rule and can afford no assistance in deciding the point. In these circumstances it seems impossible on any ground whatever to hold that the office of worship in this particular temple is a public office subject to the prohibition contained in Section 6 (f) of the Transfer of Property Act.

(3.) THE lower appellate Court seems to have refused to uphold this particular alienation because it came to the conclusion that to be valid it would have to be to the family as a whole rather than to any individual member of it. THE learned Judge seems to have relied on a remark occurring at p. 533 in Raghunth Vithal v. Purnanand Saraswati Swami. Macleod C. J. there stated: if one of the members of the family wishes to get rid of his duties as well as his rights, he could only do so in favour of the remaining members of the family, and he cannot evade the ordinary rule as to alienations by purporting to surrender his share to the original grantor, or, put in other words, the alienation of a share by one member of the family is invalid whether it is made in favour of an outsider altogether or whether it is made in favour of the original grantor of the office.