DURGA PRASAD Vs. SHAMBHU

JUDGEMENT

(1.) THE question raised in this appeal is whether in execution of a simple decree for money what is called birt acharji can be sold at the instance of the decree- holder. This birt, as we understand it, is the office of a maha brahman who officiates at funerals of Hindus and performs certain ceremonies. THE application for the sale of this description of property has been disallowed by the lower appellate court on the ground that it is a right of personal service within the meaning of Clause (6) of the proviso to Section 60 of the Code of Civil Procedure and is, therefore, exempt from sale in execution of a decree. This decision of the court below has been affirmed by a learned Judge of this Court. He has referred to the authorities on the subject and we deem it unnecessary to repeat them. THE only case which is directly in point is the decision of this Court in Durga Prasad v. Genda Weekly Notes, 1839, p. 169. In that case a learned Judge of this Court held that the birt maha brahmani or right to officiate as a priest at the funeral ceremonies of Hindus dying within a particular district, is a right of personal service within the meaning of Section 266(f) of the Code of Civil Procedure, and as such is not liable to attachment or sale in execution of a decree. Section 60 of the present Code of Civil Procedure corresponds to Section 260 of the old Code. We have not been referred to any case in which this ruling has been dissented from or the correctness of it has been questioned. THE policy of the section apparently is to prevent such a compulsory sale as might transfer property of this description to persons disqualified to perform the duties of the office [See the observations of Ranade, J., in Rajaram v. Ganesh (1898) I.L.R., 23 Bom. 131 (135)]. Reference has been made to cases in which it has been held that a birt jijmani belonging to a maha brahman may be mortgaged by a maha brahman to another maha brahman, but that analogy cannot apply to the case of a compulsory sale in execution of a decree where a stranger might be the purchaser and be a person who can never perform the duties of a maha brahman. We think that the office of a maha brahman or a birt acharji, as it is called in the present instance, is a right to perform personal service and as such is exempt from attachment and sale in execution of a decree under the provisions of Section 60, Clause (6), We dismiss the appeal with costs.