BALA GENUJI NAVALE Vs. BALVANT LAXMAN GHATPANDE

JUDGEMENT

(1.) This is a second appeal, and it is very necessary to bear in mind the facts upon which it arises. The plaintiff is the Vatandar Joshi of the village of Bhavdi. The defendants are non- Brahmins, residents of Bhavdi. The 1st defendant, it appears, belongs to an association called the Satya Shodhak Samaj, one of whose tenets is that it is desirable that the villagers should themselves conduct their own ceremonies, and not call in Brahmin priests to do so. In accordance with this tenet, when the 1st defendant s mother died, the 1st defendant himself, with the assistance of his friend, the 2nd defendant, performed over the body certain non- Brahmanical ceremonies, or, if I may so call them, lay rites. No fees were paid to the 2nd defendant, and the whole conduct of the ceremonies was in reality with the 1st defendant himself. This is clearly the character of the ceremonies as it was understood by the learned trial Judge, Mr. B.M. Butti, himself a Hindu. Upon this point he writes: It is clearly proved that no Sankalp was made, and defendant No. 1 simply made a formal show of the Dashpinda Kriya and bathed in the river, bowed down to the pots and went home. Among the Hindus, it is specially the Mantras which give efficacy to the ceremonies performed and it is not at all proved that any such Mantras were recited at the time. Looking to the whole case I hold that the ceremonies were not performed in the way in which Brahmins would have performed them. The next question is, did defendant No. 2 perform the same ? As I have said above there is not an iota of evidence to show that defendant No. 2 performed the same,....I hold that no ceremonies were performed by anybody in the way in which a Brahmin would have done it.

(2.) In the appeal before the District Court, it is quite true, as Mr. Nijsure has pointed out, that the learned District Judge ventured to offer certain criticism of the Hindu Judge s opinion as to what Brahmanical ceremony consisted in. But we cannot read this criticism as involving any decision by the District Judge that the trial Judge s determination upon this point was wrong, and, in spite of the criticism, we understand that the District Judge did not differ from Mr. Butti s finding that the ceremonies performed in this case by the 1st defendant himself were other than Brahmanical ceremonies.

(3.) The trial Judge, mainly by reason of his finding as to the non-Brahmanical character of the ceremonies, held that the plaintiff was not entitled to recover in respect of them any fees from the defendants. The District Judge took the other view, and gave the plaintiff a decree. In so doing, the learned District Judge relied upon certain cases of this Court, which, however, are, I think, clearly distinguishable from the facts which are now before us. In Vithal Krishna Joshi v. Anant Ramchandra (1874) 11 B.H.C.R (A.C.J.) 6, 10 the law was carried no further than this, that if a Hindu employed another person to perform the usual priestly or Brahmanical ceremonies, he must pay the foe which the village Joshi would have been entitled to, if he had performed the ceromonies. That is explained in the judgment by Mr. Justice West, who quotes Couch C.J. s decision in Sitarambhat v. Sitaram Ganesh (1869) 6 B.H.C.R. (A.C.J.) 250, 253 where the Chief Justice said: " It is settled law, that if a person usurps the office of another, and receives the fees of the office, he is bound to account to the rightful owner for them." In summing up the discussion, Sir Raymond West says : " The result of the cases appears to be that the office of a village priest is one which may well be established by grant or prescription, and that if a person, not entitled, assumes to act in the office and receives the fees, he may be made to refund them." Here, however, no one has received any fees, nor, upon the facts found, has any one intruded himself into the office of the village Joshi.