KALURAM Vs. NAGULAL

JUDGEMENT

(1.) THE right of parsaipan in Nimar is held by the Court of first appeal to be transferable but its operation was limited to the lifetime of the transferrer on the analogy of the right of joshipan in Berar on the authority of Rajaram v. Waman [1909] 5 N.L.R. 15. I think, the lower Court erred in extending the analogy of the. right of joshipan in Berar to this right. To the jos.hipan watan referred to in Rajaram v. Waman [1909] 5 N.L.R. 15 case certain property was attached. This one circumstance distinguishes that case from the present one. Here there is no such thing. The lower appellate Court ought to have held that the right to parsaipan was similar to the pala or turn of worship at a temple. That a right to pala or turn of worship is not immovable property but is moveable property has been established in Eshan Chunder Roy v. Momnohini Dassi [1879] 4 Cal. 683 and Jato Kar v. Makund Deb [1912] 39 Cal. 227 cited with approval in Narasingha v. Prolhodman [1919] 46 Cal. 455. In view of these recent decisions I do not think the view to the contrary effect that the right to officiate as a president at funeral ceremonies of Hindus is in the nature of immovable property can be held to be saved.

(2.) IN Sukhlal v. Bishambhar [1917] 89 All. 196 it was held that there is nothing in the law to prevent a Mahabrahmin mortgaging his right to offerings recoverable by him in his personal capacity. The Mahabrahmins are members of a sect which perform certain ceremonies and duties at funerals of Hindus. It was remarked at p. 199 that the offerings at a temple do not stand on the same basis as remuneration which Mahabrahmins receive for the services they perform at Hindu funerals. The Section 6, T.P. Act, was quoted in support of an argument that the socalled right was at least a mere possibilty within the meaning of Clause (a) of that section and that the mere possibility was incapable of being transferred. Before me reliance is placed by the respondents on the case of Puncha, Thkur v. Bindeshiwari Thakur [1915] 43 Cal. 28 and it is argued that the chance that future worshippers will give offerings is a mere, possiblility and as such it cannot be transferred. The argument is that no man can compel another to make voluntary offerings, and as offerings are made to a deity, of which the image is its visual symbol aad their appropriation) by the officiating priest is not a right in which he is entitled to traffic. Bat as pointed out in Sukhlal v. Bishamihar (5) at p. 198 where the remuneration is received for certain duties and the amount largely depends upon the Surrounding circumstances, the generosity of the person getting the duties and services performed at the funeral and very probably the wealth and position of the deceased, the offering could not be called purely voluntary. No doubt there is no obligation on any person to employ any particular Mahabrahmin. No Mahabrahmin could bring a suit to compel any person carrying out the funeral to employ him and it is probable that in the absence of a special agreement a

(3.) THE next question is whether it is transferable beyond the lifetime of the transferrer. This question is well discussed in Mancharam v. Pran Shanhar [1881] 6 Bom. 298 where it was held that that such rights are heritable, partiable and even transferable. Alienation by divided member of a Hindu family to his relations of the right of worshipping a goddess and receiving a share of the offering-was upheld, on the principle that the purchasers were persons standing in the line of succession. In that case the purchaser was not the next heir but only a possible heir. This condition is duly fulfilled in this case by the appellant who besides being a relation and a possible heir is a holder of an 8 as. share in the parsaipan in his own right and has his own turn by rotation of enjoying the remuneration " fees payable for the services to be rendered." In view of the existence of the special agreement as to enjoyment of their rights by rotation, I think the present appellant had every right to acquire the rights of the deceased Nana by the transfer dated 21st February 1921 and to sue the defendants for their obstruction to the exercise of his rights to realize the fees which were wrongfully received by them, in so far as they related to the 4 as. share purchased by him from Nana. The death of Nana could not put an end to the right of the transferee. The plaintiff had therefore every right to maintain the suit. For all these reasons I hold that the lower appellate Court's decree dismissing the suit should be reversed and that of the first Court decreeing the claim to the extent it did, restored with, proportionate costs in all the three Courts to be paid by the defendants who will bear their own.