Ramsaran Pande vs Iswar Pande and another

Wort, J.—This is an appeal from a decision of the District Judge of Patna, arising out of an application under O. 21, R. 90, Civil P.C., and two questions arose: one as to the irregularity in the publication of the sale with which we are not concerned in this appeal, and the other as to whether the property which were palas for the worship of certain deities were saleable. The last question is the only one that comes before this Court.

The point is an interesting one, and I am indebted to the learned advocates for both parties who have appeared and whose arguments. I have listened to with great interest. At first sight it would appear that this, being a right of personal service, would come within the mischief of clause (f) of S. 60 and thus would be unattachable. But it is contended in support of the judgment of the learned District Judge that the palas are saleable by reason of a decision of this Court in 1927 Pat 7 Jagdeo Singh v. Ram Saran Pande, 1927 Pat 7 = 97 IC 332 = 6 Pat 245, where it was held by the learned Judges deciding that case that the custom was established of the transferability of the Sitala Asthan which was the same as than as is involved in this case. The importance of that decision arises by reason of the decision in Haridas Haider v. Charuchandra Sarkar, 1933 Cal 757 = 147 IC 924 = 60 Cal 1351, where the same question came up for determination, and it was decided that the pala in dispute which was alienable to particular classes of persons, was also capable of being attached. Now, it would appear that the basis of that decision was that in a previous litigation the custom of transferability had been established, and it would also appear that it was upon that previous decision that the learned Judges deciding the case, reference to which I have made, came to the conclusion that the property was attachable. I pause here for a moment to state that Jagdeo Singh''s case decided by this Court was relied upon for the general proposition that the property was saleable apart from the proof of custom to which I have already referred. But an analysis of the judgment of Adami, J., who delivered the judgment in that case, clearly shows that the point to be decided in that case was whether the property was partible, and in coming to that conclusion he relied upon the proof of custom to which I have already made reference. In so far as the point to be decided was concerned, it seems therefore pot to be an authority for the proposition that the property in dispute in this case was saleable either by private treaty or in execution of a decree. But the case is to be referred to as showing that in this case the proof of custom, which had been established, assists the respondents. In other words it may be said that this matter has already been decided by reason of the previous decision to the effect that the custom of transferability had been established.

But the learned advocate who appears on behalf of the appellant points out that there is a considerable difference between Jagdeo Singh''s case of this Court and Haridas Haldar''s case of the Calcutta High Court; that is to say, that whereas the limited custom to transfer by private treaty had been established in the Patna case, the learned Judges deciding Haridas Haldar''s case had held that in a previous litigation relating to the same palas not only had the custom to transfer by private treaty been established, but the custom to sell in execution had also been established. If I may say so with great respect to the learned Judges deciding that case, I am in entire agreement with their decision that if it is once shown that there is a custom to transfer by private treaty there will be no objection to transfer by execution limiting the class of persons entitled to bid and eventually to purchase the property. But it seems difficult however to follow the decision of the learned Judges deciding the previous litigation in the Calcutta High Court that there could be such a custom to sell in execution. On first principle it seems to be a contradiction in terms. In my judgment however when once it is established, as it seems to me to clearly have been established in this case by the decision in Jagdeo Singh v. Ram Saran Pande, 1927 Pat 7 = 97 IC 332 = 6 Pat 245, that 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 Haider v. Charuchandra Sarkar, 1933 Cal 757 = 147 IC 924 = 60 Cal 1351, in the Calcutta High Court 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.

In my judgment therefore the decision of the learned District Judge was right and the result therefore is that the appeal must be held, to fail and be dismissed with costs. Leave is granted to appeal under the Letters Patent.