Ghisibai v. P. Mangilal — 1952 DIGILAW 39 (MP)

JUDGMENT : KHAN, J. This is a Special Appeal under S.23 of the Madhya Bharat High Court of Judicature Act (Act 8 of 1949) against the judgment and decree of MR.Justice Mehta, in Civil Second Appeal No.3 of 1948, decided by him on 18-10-1948, in which he set aside the judgment and decree of the two Courts below and non-suited the plaintiffs. 2. I shall briefly state such facts of the case only as are necessarily for the purpose of this appeal without stating the case of parties in full. 3. The plaintiffs, Ghisibai Brahmin, and Rata Kisan, the adopted grand-son of Bhawarlal, have brought this suit against the defendants on the allegation that the Yajman Vriti of Khandelwal Mahajan community of Indore was performed by the members of the family of the plaintiffs and the defendants, that the ancestors of the plaintiffs and the defendants had entered into an agreement regarding the division of income between them in the proportion of 2:3, that as a matter of fact the parties used to divide the income between themselves half and half. This suit was: (1) For a declaration that the plaintiffs are entitled to 2/5th share of the income derived from the Yajman Vriti. (2) for settlement of accounts. (3) for the recovery of a sum that may be found due on the accounts being taken. 4. The defence was that Yajman Vriti belonged exclusively to the defendants, and, that the plaintiffs were not entitled to any share from this income. It was admitted that Bhawarlal did officiate at the ceremonies but it was at the instance of the defendants, and this did not entitle the plaintiffs to any share in the Yajman Vriti. 5. The trial court held that the plaintiffs were entitled to 40 per cent of the income from Yajman Vriti and ordered accounts to be taken of this income from 1-3-1937 to the date of the decree. In appeal the District Judge, Indore confirmed the decision of the trial Court and dismissed the appeal. In Second Appeal No.3 of 1948 before the High Court, Mr. Justice Mehta stated that Yajman Vriti could be founded either on usage or it may be the result of a grant, and as there was no evidence on record to establish the nature and the origin of the right, he allowed the appeal and non-suited the plaintiffs. 6. In Second Appeal No.3 of 1948 before the High Court, Mr. Justice Mehta stated that Yajman Vriti could be founded either on usage or it may be the result of a grant, and as there was no evidence on record to establish the nature and the origin of the right, he allowed the appeal and non-suited the plaintiffs. 6. It is apparent from the judgment of MR.Justice Mehta, that he addressed himself to the question of discovering the origin of Yajman Vriti and expounded the proposition of law as to how it comes into existence. But let us consider whether for the purpose of this case it is necessary to trace the nature and the origin of Yajman Vriti. 7. From a perusal of para 3 of the plaint and the corresponding para of the written statement, it appears that the plaintiffs based their claim on the fact that Yajman Vriti had been in existence in the families of the two (the plaintiffs and the defendants) for generations and that by an agreement between the ancestors of the two families, the profits accruing from Yajman Vriti were shared by them in the ratio of 2:3-the plaintiffs taking 2 parts and the defendants 3. In the written statement, the defendants admitted the existence of Yajman Vriti, but said that they were entitled to the income from the Yajman Vriti exclusively and that no offerings were divided as alleged. 8. In view of what is stated in the pleadings, where the existence of Yajman Vriti is admitted by the parties and is a common ground, the only real dispute is with regard to the right of the plaintiffs in the Yajman Vriti and if that is proved, we have to ascertain the extent of the plaintiffs' share therein. This naturally obviates the necessity of going into the origin of the right. But I think that para 3 of the plaint and the written statement were not brought to the notice of MR.Justice Mehta. 9. It may also be stated that because there was no dispute as to the existence of the right of Yajman Vriti between the parties, no issue was deemed necessary and as a matter of fact no issue bearing on the point was framed by the Courts below. 10. 9. It may also be stated that because there was no dispute as to the existence of the right of Yajman Vriti between the parties, no issue was deemed necessary and as a matter of fact no issue bearing on the point was framed by the Courts below. 10. The learned counsel for the appellants has argued that the evidence in the case shows that for 20 years the conduct of the parties has been to divide the income from Yajman Vriti and this proves the establishment of the right of Yajman Vriti by usage, which fact Mr. Justice Mehta has overlooked. Mr. Chitale has referred to Easements and Licenses by K.N. Joshi 1948 Edition p.141. As I have stated above, it is common ground that Yajman Vriti existed, so the point not being in issue, I need not look at the evidence which establishes the, right. But I am afraid that a reference to Joshi's Law of Easements and Licenses is not helpful. It is a treatise on the well-known Law of Easements and Licenses. But nowhere has it been shown, nor can it be assumed that, the right of Yajman Vriti is in the nature of a servitude, by reason whereof the Law of Easement becomes applicable to it. An Easement in English Law has been defined as a "privilege without profit which the neighbour of one neighbouring tenement has of another tenement" and the definition of the term Easement given in S.4 of the Easements Act (Act 5 of 1882) needs only to be read to convince one that there is not even a remote affinity between the right of Yajman Vriti and the right of Easement. The learned counsel for the respondents has pointed out that there is nothing common between the two rights and that the Law of Easement and Licenses is a Law applicable to Easement and Licenses only, and, therefore, the argument that the right of Yajman Vriti was acquired by its existence for 20 years is not sustainable. I agree with the learned counsel for the respondents. The page to which our attention has been invited is 141 of the book. The discussion on the page is under S.15 of the Easements Act, which deals with the mode of acquisition of an easement by prescription .And the discussion in the main centres round the 'fiction of a lost grant' in India. The page to which our attention has been invited is 141 of the book. The discussion on the page is under S.15 of the Easements Act, which deals with the mode of acquisition of an easement by prescription .And the discussion in the main centres round the 'fiction of a lost grant' in India. But all this refers to the acquisition of an easement. On a careful consideration of the entire Law on the subject, I am of the opinion, that it is not proper to bracket the right of Yajman Vriti with the right of easement or treat the two as being on the same level and plane. The reason which perhaps induced the learned counsel for the appellant to refer to it is the use of the word 'grant' because a grant can be the basis of a right of easement as well as that of the right of Yajman Vriti. 11. Issue No.6, framed by the trial Court, was directed towards finding out whether "Yajman Vriti" was the indivisible right of the defendants and that plaintiffs had no share in the same? In the settlement of the issue, the court, on the basis of evidence adduced by the parties, recorded its finding that the plaintiffs were entitled to participate in the income of Yajman Vriti and that their share was 40 per cent of the yield. This finding of fact has been confirmed by the District Judge and in view of this concurrent finding, it is not open to us to go behind it in a second appeal, much less so in the third appeal, which the present appeal before us purports to be. In - 'Durga Chaudharani v. Jewahir Singh', 17 Ind App 422 (PC), the Privy Council has laid down that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error may seem to be. 12. The learned counsel for the respondents has made several submissions which deserve to be noted. In - 'Durga Chaudharani v. Jewahir Singh', 17 Ind App 422 (PC), the Privy Council has laid down that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error may seem to be. 12. The learned counsel for the respondents has made several submissions which deserve to be noted. He has argued that the right in question is not Yajman Vriti, but it is Man Vriti, that as such the suit cannot be regarded as being one of civil .nature under S.9 of the Civil P.C., that income from the source is casual and personal and is not divisible and that even if it is proved that there was an agreement to divide the income, it should be deemed to have come to an end at the death of those who were parties to the contract. I propose to examine these submissions one by one. 13. First, it is said that the right claimed is not Yajman Vriti, but Man Vriti. Before we proceed we must have a clear idea as to what Yajman Vriti and the Man Vriti are. 14. There is no lack of decisions, which not only set out but also differentiate between the two rights. Both are offerings made to a Purohit by a devout Hindu on the occasion of his officiating at religious ceremonies and functions. A Man Vriti, however, differs in this respect that the relation between a Yajman and Purohit is casual or temporary. There is no fixity of character and in consequence it is not a heritable asset. But a Yajman Vriti creates a permanent relation, which is regarded as a heritable property. Yajman Vriti is a well-known institution which has been the subject of consideration in many cases. In - 43 All 356 (35?)', the right to the partition of Yajman Vriti was recognised. In - "Sukhlal v. Bishambhar', 39 All 196, a mortgage of such right was given effect to. In short the right of Yajman Vriti has been held to be heritable and sometimes transferable as well There is a very able discussion of the entire -question in - Sarda Kunwar v. Gajanand', AIR 1942 All 320. It may pertinently be asked if it is necessary for us to decide whether the right claimed is in the nature of Yajman Vriti or Man Vriti. It may pertinently be asked if it is necessary for us to decide whether the right claimed is in the nature of Yajman Vriti or Man Vriti. I think it is not necessary to do so. The reason is that according to para of the plaint the right claimed is Yajman Vriti and the defendants in para 3 of their written statement have referred to the right of Yajman Vriti also. The position taken up by the parties in all the courts through which this case has passed was with regard to the right of Yajman Vriti and not Man Vriti. The plea of Man Vriti is a new one and obviously it is sought to shift the ground. But having adopted one attitude in the courts below, the defendants shall not be permitted to advance a new and inconsistent plea, so as to place the plaintiffs at a disadvantage. 15. As to the argument that the present suit is not of a civil nature, I would only say that the claim, on the foundation of which the plaintiffs have instituted this suit, has been held to be in respect of the right of Yajman Vriti and there is authority galore that such a right is a right in property and further more, that it is heritable. See - 'Beni Madho v. Hiralal', 43 All 20; - 'Mt. Sarda Kunwar v. Gajanand', AIR 1942 All 320; - 'Narayanan Lal v. Chulhan Lai', 15 Cal LJ 376: 14 Ind Cas 677; - 'Ramchahder v. Chhabhu Lal', 1923 All LJ 358; - 'Lachman Lal v. Baldeo Lal', AIR 1917 Pat 37. The argument, therefore, that the suit is not of a civil nature under S.9 of the C.P. Code is not well founded. 16. No authority has been cited by the learned counsel for the respondents for the proposition that income derived from Yajman Vriti is personal and not divisible. The right to Yajman Vriti being a right in property is heritable and in consequence it is also divisible. - 'Ramchander v. Chhabhu Lai', AIR 1923 All 350 is a case in which partition of Yajman Vriti was held to be valid. 17. The right to Yajman Vriti being a right in property is heritable and in consequence it is also divisible. - 'Ramchander v. Chhabhu Lai', AIR 1923 All 350 is a case in which partition of Yajman Vriti was held to be valid. 17. Regarding the last contention of the learned counsel of the respondents, namely that even if the parties agreed to divide the income from Yajman Vriti, the agreement should be regarded to have come to an end by the death of the parties and no further division is now possible. This contention is based on an argument which overlooks the nature of the Yajman Vriti right. This right has been held to be a right in the property, which is also heritable - 'Sarda Kunwar v. Gajanand', AIR 1942 All 320. This right is another name for the property which it represents and the property comes into being by operation of law. It is not a right or property that has come into existence as a result of any contract of partnership between the claimants. In this view of the matter, the question of the agreement continuing after the death does not at all arise. Besides this I may as well state that the defendants have not taken that plea in any of the Courts below and at this stage of the case, they shall not be permitted to raise new pleas.- See 'Ganga Bakhsh Singh v. Gokul Prasad', AIR 1918 Oudh 62. 18. In result, the appeal is allowed and setting aside the judgment and decree of this Court passed in Civil Second Appeal No.3 of 1948, on 18-10-1948, we confirm the judgment and decree of the courts below. The costs throughout would abide the event. 19. SHINDE, C.J. :- I agree.