High Court Of Judicature At Bombay
Second Appeal No. 582 Of 1925
DATE: 23-07-1926
Digambar Tatya Utpat
vs.
Hari Damodar Utpat
Amberson Marten, C J
[1] This case essentially depends on its own particular facts. The point is whether on those facts a certain interest in connection with the offerings at the temple of the Goddess Rukhmini at Pandharpur can be validly mortgaged and sold in execution to a member of the class of Utpats, the owners of the Vritti of officiating as priests in this temple.
[2] The first question is the true construction of the mortgage of January 4, 1888 (Exhibit 28). I will not quote the mortgage in detail, but our construction of it is that it mortgages the share amounting to l/288ths of the mortgagor in the net proceeds of the offerings made by devotees to the Goddess after providing for all the customary expenses of the temple payable out of the funds thus arrived at. We do not think that it gives the mortgagee the right himself to worship the Goddess and to take himself the offerings placed at the foot of the idol. All that the mortgagor is entitled to is this small aliquot share.
[3] The custom in this temple, which is similar to the custom obtaining in the main temple at Pandharpur, (which the appellate Court had to consider exhaustively in another case) is for the Utpats or priests to farm out amongst themselves by auction the actual right of officiating and taking the offerings. Then the proceeds thus arrived at are divided amongst the particular class of priests. We are told, in the present case, that the priests number some forty-seven, while in the case of the main temple at Pandharpur they are far more numerous.
[4] Further, the learned trial Judge has found as a fact that not only are the daily services farmed out in this way, but also that the individual shares have been frequently mortgaged and redeemed. He says:-
I am satisfied that the Utpat Vritti shares have been frequently mortgaged and redeemed, the transaction, however, being confined among the Utpats them” solves, and no outsider being allowed to have a share in the Vritti even temporarily. The system of collecting revenue by farming also shows that legal alienations by one Utpat to another are recognised; for otherwise the farmer would have no right against any sharer who receives his share of the auction money and afterwards insists upon attending the Goddess to the detriment of the farmer s interests. Apart from the question of farming, however, it is clear that Vrittis can be mortgaged and this is sufficient for the purposes of this suit.
[5] So far as the question of custom is concerned it is conceded by counsel for the appellant that he is bound by the finding in the Court below, and that finding is not here challenged.
[6] The next question arises as to whether, on that custom and on the construction which we have placed on the mortgage deed, the mortgage debt can 1)3 enforced by sale and execution. Both Courts below have held that it can be. Prima facie, on the construction which we adopt, the right to receive this fraction of the net proceeds of the offerings conies within Section 60, Sub-section (1), of the Civil Procedure Code. It is, however, alleged that the property falls within proviso (f) as being a right of personal service, and that consequently it cannot be attached or sold. In this particular case, we think that contention is not correct. In our view, all that is mortgaged is the interest in the mortgagor s share in the net balance of the offerings. Consequently the numerous authorities such as Rajaram v. Ganesh (1898) I.L.R. 23 Bom. 131 ; Girijanund Datta Jha v. Sailajanund Datta Jha (1896) I.L.R. 23 Cal. 645 ; Shoilojanwnd Ojha v. Peary Charan Dey (1902) I.L.R. 29 Cal. 470 ; Puncha Thakur v. Bindeswari Thakur (1915) I.L.R. 43 Cal. 28 or Ganesh Ramchandra Date v. Shankar Ramchandra, (1886) I.L.R. 10 Bom. 395 which refer to the right of the officiating priest to worship the idol directly and to receive the offerings directly, are, in our opinion, clearly distinguishable.
[7] In particular we throw no doubt whatever on the propositions there laid down that ordinarily the offerings to an idol are the property of the idol and not the property of the priest, in the absence of any special custom or any express intention to the contrary by the donors. Similarly, we must, in no way, be taken in any way to dissent from the conclusions in those cases that the priests rights of officiating and receiving offerings cannot in those cases be attached or sold. For instance, Ganesh Ramchandra Date v. Shankar Ramchandra is a case of an ordinary outside creditor of a particular priest attempting to attach the latter s right of worship and of a share in particular offerings.
[8] In our judgment, that is very far from the case we have to deal with. Consequently we do not agree with the argument presented to us that if execution were allowed in the present case there is no saying where it would stop and it would open a door which might lead to great injury being caused in the future. In the present case the only practical result will be this. The sale is to be confined to the Utpats themselves, and consequently the mortgagor may either buy in his share at the auction and pay off his mortgagee, in which case no harm is done. or, alternatively, if ho does not do so, he loses henceforth his share in these particular net offerings, and all that will happen will be that there will be one priest less to share in this particular fund.
[9] It was next argued that even if the saleable property fell within the meaning of Section 60, then, under the provisions of the Code dealing with the execution of decrees, Court sales can only be by public auction, and it is not within the power of the Court to limit the bidders to any particular class of persons. In particular Order XXI, Rules 65 and 76, and form 29 in Appendix (E) were relied upon. In our opinion, that contention also is not well founded. Speaking for myself, I see no objection to the bidders being restricted for good reasons to a particular class or classes. We know, for instance, that the Court has power to prevent the judgment-creditor or a mortgagee from bidding. So, too, supposing the attached property consisted of shares in a public company to be sold by public auction and not through a broker under Order XXI, Rule 76, and supposing the articles of association of that company provided that the transferees should only be members of a particular family, I see no reason why the Court should not validly limit the bidders to people, who could validly buy the shares. Otherwise, the result is that no sales can be held at all, and consequently although the main provisions, viz., Section 60, direct a sale, the machinery provided in the rest of the Code is insufficient to carry out the main direction. To my mind, that is giving a construction to the Code which is neither in accordance with common sense nor with common equity.
[10] Accordingly, we think that the lower appellate Court was right in holding that a sale could be held and that the bidders should be confined to those who were actually Utpats. No damage can then possibly be done to the worship, and there can be no question then of any outsider being invited to perform the worship of the idol, or even to take a share in the offerings. Nor will the past custom of this particular temple be infringed. On the contrary, it will only, in my opinion, be carrying out what this particular class of people have been doing for a long series of years. Whether these financial transactions are compatible with the highest notions of divine worship is a matter, which we had to comment on in the Pandharpur case, and I do not wish to repeat some of the observations which were made by the Court in that case. We are only concerned here with the bare questions of law. Accordingly I would dismiss the appeal with costs.
Patkar, J.
[11] I agree.
