RAMSARAN PANDEY Vs. ISWAR PANDEY

JUDGEMENT

(1.) This is an appeal under the Letters Patent from a decision of a learned Judge of this Court, and the only question raised is whether the property in dispute, being palas or shares in the worship of the deity Shitla enjoyed in turns, is saleable. The learned advocate for the appellant has contended that these palas or rights of worship are mere rights of personal service within proviso (f) to Section 60, Civil P.C., and that they are accordingly not liable to attachment from which it will, of course, follow that they are not saleable in execution. He has referred to a series of cases beginning with Ganesh V/s. Sahanker (1886) 10 Bom 395 in which vrittis and some-what similar rights of worship and officiation have been held to be not liable to attachment under the provision of law on which the learned Advocate has laid stress. That, however is only the general rule. So far as the rights we are particularly concerned with go--rights of worship of the deity Shitla in the temple at Meghra--there is a previous decision of this Court in Jagdeo Singh V/s. Ram Saran Pande 1927 Pat 7, and it is important to notice that in the litigation that ended in that decision the appellant before us was the plaintiff. The question on that occasion was whether these palas were partible, and Adami, J., who delivered the judgment of the Court, Macpherson, J., concurring, observed that it was clear that there had been many cases of transferability, and that though there was no distinct finding that all the elements necessary for the proof of custom existed in the case before him, the lower Courts were not wrong, considering that the then defendant 1 himself claimed under a transfer, in coming to a finding that on the instances given by the parties there was sufficient basis for a finding that the rights of palas in the case of the Shitla Asthan could be transferred and could be partitioned.

(2.) As I have already said, this was a decision at the instance of the present appellant who was the plaintiff in the former litigation. He cannot therefore now be heard to say that the palas are not partible or are not transferable, nor has he attempted to make out that they are not heritable. Had these palas been mere rights of personal service within the meaning of proviso (f) to Section 60, Civil P.C., it is obvious that they could not have been either heritable or partible or transferable. The particular argument on which the learned Advocate has laid so much stress is, therefore clearly inapplicable. The learned Advocate has no quarrel with the observation contained in the judgment under appeal that if there was a custom established to transfer, it is impossible to hold that the alienation thus warranted cannot be brought about by the procedure of a Court sale so long as the condition mentioned in Haridas Haldar V/s. Charu Chandra Sirkar 1933 Cal 757 is imposed; that is to say, the class of persons to whom the sale is to be made is a class of persons who would be entitled to perform the services.

(3.) There is also no dispute that the auction purchaser does belong to the class of persons so entitled. I would accordingly dismiss this appeal with costs and affirm the judgment of the lower Court. Courtney-Terrell, C.J.