Holloor Gopal Rao and Others vs War Nasi Shiv Ramiah

Appeal from the judgment and decree of the Court of the District Judge, Karimnagar, dated the 26th Behaman 1350 F in Appeal No. 10/4 of 1350F. on the file of that Court.

The Respondent in this case filed a suit for a declaration of his right to perform the duties of a purohit in the village of Vankapur aid Kaehapur. He also prayed for a perpetual injunction restraining the Appellants from performing those duties in the aforesaid villages on the allegation that his ancestors had been performing these duties since a long time and as such he alone was entitled to officiate as purohit and to perform those duties in those villages. The Defendants denied that the ''purohitgiri'' in those villages belonged to the ancestors of the Plaintiff. They also objected to the maintainability of the suit. On the evidence led by both the parties the trial court came to the conclusion that the Plaintiff had established that his ancestors discharged the duties of purohit and therefore held that ha was entitled to a decree for a declaration of his right to ''purohitgiri'' in the villages. The Defendants appealed to the District Court, and (he lower appellate Court modified the decree by providing that the Defendants shall not be prevented from getting the services of the purohit rendered by persons other than the Plaintiff. The Defendants filed an appeal to this Court against the above judgment and Decree.

2a. The main objection that was raised at the Bar before this Court was, that a suit of this nature was not maintainable u/s 5 of the Code of Civil Procedure. Other arguments depending upon the evidence in the case were also raised by the Appellants, but as the decision of the first point went to the root of the case, arguments were heard by the Division Bench on the question about the maintainability of the suit, and having regard to the fact that there was a conflict of judicial opinion in this regard the Division Bench referred the whole case to the Full Bench.

The short point now before the Full Bench is as to whether it is open to a party to seek for a declaration that he is entitled to perform the functions of a purohit in a village or in a particular family and that no other person could discharge the same functions, can the Court award a decree so as to restrain other persons from performing the same functions as purohit in any particular village or in an any particular family. It was contended by the learned Advocate for the Appellants that however long a person might have been performing the functions of a purohit or might have been acting as a ''joshi no declaration of a right to perform these duties to the exclusion of others could be passed. The learned Advocate relied upon the decision of the Madras High Court, reported in Ramakrishna v. Ranga 7 Mad. 424 , wherein it was held that a suit of a nature of this kind was not maintainable having regard to the provisions of Section 9 of the Indian Code of Civil Procedure. It was observed in that case that this runs counter to the principles of Hindu Law and no person could acquire a right to perform these duties merely by virtue of inheritance, because the performance of these duties is dependant upon the personal qualifications, capacity and the attainments of a particular individual.

The Counsel appearing on behalf of the Respondent relied upon a judgment of the Bombay High Court, reported in - Ghelabhai v. Hargovan 36 Bom 94, and contended that these rights could always be the subject matter of a suit and a Court is competent to award a decree in a proper case. The learned Counsel for the Respondent also relied upon a decision of this High Court in the case of Venkata Sastri v. Sanap Joshi 1348 Nazair-e-Haidarabad 211. Inasmuch as there was a, decision of this High Court following the Bombay High Court ruling and as the consensus of opinion so far as the other High Courts were concerned was against the view expressed by the Bombay High Court, it was thought advisable to refer the case to a Full Bench.

In deciding about this question as to whether a suit (lies?) for the enforcement of a right to ''purohitgiri'' to the exclusion of others, the following matters have to be borne in mind:

(a) A right to hold a particular office such as that of a purohit is dependent on the particular and special qualifications and the attainments of a particular individual; the son of a purohit cannot necessarily be regarded as one possessing the requisite qualifications.

(b) There can be no exclusive monopoly or privilege in regard to the exercise of this right of ''purohitgiri that is to say, no right can be enforced so as to exclude other people from following the same calling.

(c) Above all it would be absurd to compel any person to avail himself of the services of a particular person as the purohit for it should always be open to any person to utilise the services of any purohit, for the matter of that, one whom he likes to officiate at any ceremonial function. To pass a decree directing that the inhabitants of a particular village shall utilise the services of a particular individual alone and shall not be entitled to requisition the services of any other would offend against all well-established and accepted notions of freedom of public life.

(d) The emoluments that a purohit receives are only voluntary being dependent on the pleasure of the individual, engaging his services and therefore no purohit can have any discontent on the ground that a purohit has been deprived of his emoluments that he otherwise would have received, because the emoluments that he would receive are left to the sweet will and pleasure of the engaging party. In short this right to go to the house of an individual for officiating as a purohit during the performance of religious and social functions cannot be regarded as a right, in the nature of a vested right. The fact that a priest has been going to particular individuals to officiate at religious functions on ceremonies does not confer on him a legal character to enable him to obtain a decree for a declaration of such legal status.

In a case which arose before the Madras High Court, the Plaintiff contended that when the town arose the Plaintiff''s ancestors were appointed by the Government itself as purohits of the village and they were enjoying the ''Mirasi'' with fees and that the Plaintiff''s ancestors and later on the Plaintiff had been performing the duties of purohits, and that therefore the Defendants were not entitled to officiate as purohits at the annual ceremony of the first Defendant''s brother. In that case it was decided that the grant of the mam by the Government merely secured the services of the purohit to be availed of by the inhabitants, if they chose to do so, and the emoluments and the income from the inam granted by the Government appurtenant to the ''Mirasi'' were amounts that were paid by the Government for the presence of a purohit in the village. Under those circumstances the Judges held that the Plaintiff was not entitled to a decree as prayed for, vide case of Ramkristna v. Ranga 7 Mad. 424.

A similar case came before the same High Court in the case of Saripaka China Madhava v. Muthura Suryaprakasam 24 Ind. Cas. 204 (Mad.) . In that case also it was clearly laid down that it would be contrary to the principles of Hindu Law to recognise any hereditary right in a spiritual office, the right to hold such an office being dependent upon special qualifications. If any ''inam'' for performing the duties of a purohit in a particular village has been granted that can only give the right to the individual to claim the emoluments that are appurtenant to the inam and offer his services as purohit. As regards the utilisation of his services as purohit by the public, it would be left to the will of any individual person to requisition his services or not. It merely gives the facility to the inhabitants of the village to seek the aid of the individual for spiritual ministrations.

As regards the view taken by the Bombay High Court that suits of the nature of the suit before us are cognisable by a Civil Court and that a decree could be passed, we are of opinion that it was too late in Bombay to go back upon the long set of precedents which had been established in that High Court recognising such rights. The Bombay cases are clearly distinguishable as being based on the principle of STARE DECISIS.

It was urged by the Counsel for the Respondent relying upon the decisions of the Bombay High Court and the decision of this Court, that the Court is not debarred from awarding a decree for a right to the office of purohit in any particular case. The first case relied upon by the Respondent''s Counsel was a case reported in Savla Tukaram Mali Vs. Santya Parsha Mahar, . This was a case of village MAHARS, filing a suit for a declaration of their right to take the skins of dead animals. This right being in the nature of a ''Vatan the Bombay High Court held that there was nothing in law against the decreeing of a suit for a declaration of such right. The other case relied upon by the Counsel for the Respondent was the case of Ramalingachi Reddi and Others Vs. Elayyaperuma Goundan and Others, This was a suit for a decree to declare the right to lead the horse at a festival and the right to hold the ''Kalasam'' and receive the honours on ceremonial occasions of ''Pansupari'' at the time of the festival. These, it must be understood, form part of the duty of an office and it was therefore held in that case that where certain duties'' form part of an office a suit could always lie for a right to perform certain duties appurtenant to that office and that Section 9 of the CPC was no bar. The performing of these duties, as would be clear did not compel any individual to utilise the services of any particular individual to the exclusion of others, as is sought to be done in the case before us. Therefore a decree which did not infringe individual volition could always be given.

To the same effect was the decision of the Madras High Court in the case reported in Anna Rangachariar and Others Vs. V. Parthasarathy Iyengar and Others, . What was decided in these cases was that where the Plaintiff''s suit was for enforcing a right to hold an office and receive emoluments appertaining to that office by-virtue of one being the heir or belonging to a particular class or community, a decree could be passed declaring such right.

The case which was adverted to by the Counsel for the Respondent of this High Court is, in our opinion, not relevant. In the case of Venkata Sastri v. Sanap Joshi 1348 Nazair-e-Haiderabad 211, it was specifically held that it was not possible to give a decree in favour of the Plaintiffs that, without their consent, nobody else could discharge the functions of ''Joshigiri'' and that no person could be compelled to engage the services of the Plaintiff alone. These observations appear at page 213 of the report (1343 Nazair-e-Haide-rabad page 211). While discussing the point in question the Judges have also clearly expressed that ''vatandari'' is one thing while the duties appertaining thereto is quite a different thing.

We are therefore, of opinion that the decision relied upon by the Counsel for the Respondent far from helping his contention is in support of the view held by the majority of the High Courts in India.

Whatever might have been the trend of the decisions of the Courts in India or in Hyderabad prior to the coming into force of the Constitution, the view contended for by the Respondent''s Counsel, can no longer continue to prevail after the 26th of January 1950 for the reason that it would clearly offend Article 19 (g) of the Constitution, for among the fundamental rights conferred by the Constitution, the right to practise freely any profession or to take up any calling without any hindrance, is one of the fundamental rights which has to be protected. If the Court were to give a decree in favour of an individual declaring him alone to, be entitled to practise the profession of ''purohitgiri'' to the exclusion of others, it would amount to laying a restraint upon the others to carry on the same profession in the village. It would decidedly offend the fundamental rights and as such cannot be countenanced.

It would be advisable to refer in this connection to the observations of Mahajan J., in the case of Chintamanrao v. State of Madhya Pradesh AIR 1951 SC 113. While considering the reasonableness of restriction placed upon the right of the individual of a particular place to engage himself in a particular business and thus earn his livelihood, His Lordship observed

The statute prohibits persons who have no connection or relation to agricultural operations from engaging in the business of Bidi making, and thus earning their livelihood. These provisions cannot be said to amount to reasonable restrictions on the right of the applicants and therefore the statute is not in conformity with the provisions of Part III of the Constitution.

For all the above reasons we are of opinion that no suit for a declaration of a right to perform ''purohitgiri'' in a particular village to the exclusion of others can lie. This appeal is therefore allowed and the Judgments of the Courts below set aside. Having regard to the fact that the case relates to ''purohitgiri'' there is no necessity to award costs and so no order is made as to costs.