JALANDHAR THAKUR Vs. JHARULA DAS

JUDGEMENT

(1.) The appellants here are the heirs and legal representatives of one Bhaiaji Thukur, now dead, who was the plaintiff in the suit in which this appeal has arisen. Bhaiaji Thakur was a Shebait of an ancient temple of Mahadeoji, called The Singheswar Temple, which is situate in Mawza Gouripur, otherwise Singhuswarpur, in the district of Bhagalpur. Bhaiaji Thakur became a Shebait of the Temple on the death in 1900 of one Musammat Grihimoni who was the widow of one Pratipal Thakur. Pratipal Thakur had been a Shebait of the Temple, and until Ins death had been, as such Shebait, entitled to receive a 3 1/2 annas share of the daily surplus income from the offerings to, after defraying the expenses of, the Temple; on his death his widow, Musammat Grihimoni, succeeded to his Shebaitship and accordingly became entitled to receive the same share of the daily surplus income from the offerings. The right to such 3 1/2 annas share came to Bhaiaji Thakur on the death of Musammat Grihimoni as the next reveisionary heir under the Hindu law to the Shebaitship. The Shebaits of the Temple are Brahmin Pandas who, as Shebaits, have to perform, or to provide for the performance of, the sacred worship or puja of the Deity at the Temple. Jharula Das, who is the defendant to the suit and the respondent to this appeal, is by caste a Beldar, and, as a Beldar, is not competent to perlorm, or to provide for the performance of, the sacred puja to the Deity at the Temple, and consequently was incapable of acquiring or holding the office of a Shebait.

(2.) In 1880, Jharula Das obtained a decree for money on a mortgage which had been granted by Musammat Grihimoni. In execution of that decree Jharula Das in 1891 caused the 3 1/2 annas share of Musammat Grihimoni to be put up for sale, and at the sale on the 20th November 1891 purchased the share. Jharula Das on the 8th February 1892 obtained a certificate of sale in which the property which he had purchased was described as the "Income of the Muth of Sri Singheswarthanji Mahadeo, which Muth is situated in Mouzah Singeswarthan, Pergunnah, Nisankhipur Khurha, to the extent of 3 annas 6 pies, which belongs to the judgment debtor, within the jurisdiction of the Madhepura Sub-registry Office, Bhagalpur Collectorate.

(3.) In November 1892 Musammat Grihimoni and Bhaiaji Thakur brought a suit against Jharula Das to have the sale to Edge him of the 20th November 1891 set aside. That suit was by the permission of the Court withdrawn by Musammat Grihimoni and Bhaiaji Thakur with liberty to bring a fresh suit on the same cause of action. In 1895 Musammat Grihimoni brought a fresh suit against Jharula Das to have the sale set aside on the ground that the decree and the order for sale had been fraudulently obtained by Jharula Das. The suit of 1895 was dismissed on appeal on the ground that her proper remedy was by an application under Section 244 of the Code of Civil Procedure, 1882, to dispute the validity of the sale, and consequently that the suit did not lie. Their Lordships tail to understand how Section 244 of the Code of Civil Procedure, 1882, could have applied to a suit which in effect was Drought to set aside the decree of 1880, and the order for sale, on the ground that Jharula Das had obtained them by fraud.