JUDGMENT
Fawcett, J.
1. This is a suit relating to a dargah (shrine) of a Pir in the village of Pawas. The plaintiff claims to be the descendant of the Pir and sues for a declaration o£ his rights as a mujawar in respect of the dargah, and for an injunction against obstruction to his rights. In the plaint he claims full proprietary rights over this dargah, and the properties appertaining to it. He also claims the sole right of conducting, the Urus or the annual festival and other religious ceremonies therein. The defendants on the other hand claim as Kazis of Pawas the right of performing these ceremonies and to receive the navas or offerings made at it. The main dispute was as to disposal of those offerings. The trial Court granted the plaintiff a declaration that he was the present rightful holder of the office of the mujawar, but rejected his claim to the proprietorship over the dargah and moveables therein. This decree was confirmed by the District Judge on appeal, except that a declaration that the trial Judge made to the effect that the defendants (Kazis) had no right of management over the dargah was struck out by the District Judge. Both Courts have held that, so far as the plaintiff’s claim relates to the management of the Urua and other ceremonies and to the disposal of the voluntary offerings made by devotees, it is not maintainable under Section 9 of the Civil Procedure Code. The plaintiff’s appeal to this Court is pressed only as to this latter point.
2. The first question is whether the plaintiff’s alleged rights: (a) to conduct certain religious rites at the time of Urus, and (b) to appropriate the proceeds of the navas or offerings made by devotees, less certain expenses, are barred because he claimed these rights as manager of the dargah and he has been held by both the lower Courts not to be its sole manager, as he claimed to be.
3. I do opt think this is involved by the pleadings. Plaintiff’s main contention in the plaint was not a right of management, but a proprietary right of ownership over the dargah. Accordingly Issue 3 deals with this question, and no issue was framed in the trial Court as to the right to manage the dargah, though this question is discussed in the Subordinate Judge’s judgment and was agitated at the trial. The Subordinate Judge in summarizing the plaint puts the claims (a) and (b) that I have mentioned above as further claims’ to the claim of proprietary, rights. Similarly, the District Judge in para. 2 of his judgment separates the claims, and his decision goes no further than saying that the plaintiff has not the sole right to manage the dargah property and the religious ceremonies connected with it.
4. The second question is whether the lower Courts erred in holding that the plaintiff’s suit is barred by Section 9, Civil Procedure Code, so far as it relates to religious services in the shrine and the voluntary offerings such as Navas.
5. As stated in both judgments the present dispute arose over these Navas offerings, and there were proceedings before the Sub-Divisional Magistrate and the police. Such offerings, after they have been received, are certainly “property”; and so far as there is a dispute between the plaintiffs and the defendants (Kazis) as to who is entitled to them, the suit seems prima facie maintainable, as stated in the Explanation to Section 9, Civil P. C, although the determination of the disputed right may depend on the decision of questions as to religious rites or ceremonies.
6. The District Judge, in my opinion, goes too far when he says that offerings of a purely voluntary kind cannot form, the subject of litigation. No doubt, when the holder of an office brings a suit to recover the offerings received by a usurper for performing a certain ceremony it has been held that the suit will not, lie, because (as explained in Mulla’s Code of Civil Procedure, 3rd Ed. P. 23) the offerings must be taken to have been intended for the very person actually performing the ceremony, whether rightfully or wrongfully; and further it is quite possible that no gratuities would have been given at all if the rightful owner of the office officiated at the ceremony instead of the usurper. But the present suit is not of that description. Also it has been held that when a suit is in respect of a ‘mere dignity,’ the fact that voluntary offerings are made by the worshippers or votaries does not change the real character of the suit, cf. Narayan Vithe Parab v. Krishnaji Sadashiv [1886] 10 Bom. 233 and Sayad Nurudin v. Abas [1912] 14 Bom. L.R. 573. But I do not think this suit can properly be described as one of a ‘mere dignity.’ It certainly differs from the suit under consideration in Narayan Vitke Parab v. Krishnaji Sadashiv [1886] 10 Bom. 233, which was in regard to an alleged right of precedence at the worship of a deity and a right to receive trifling gifts from the priest. Again it is not in respect of what may be called an “itinerary” right over a certain territory, such as formed the subject of the suits in Madhusudan Parvat v. Shri Shankaracharya [1909] 33 Bom. 278 and Sayad Nurudin v. Abas [1912] 14 Bom. L.R. 573. The present suit is in regard to a religious office attached to a shrine, and if the distinction suggested by Mr. Mulla at p. 22 of his commentary for reconciling the decisions of this High Court is justified, the suit is not barred. The distinction seems to me to be one, which supplies a good test between a suit for a ‘mere dignity’ and one for a ‘religious office’ and property appurtenant to such office.
7. No doubt, there are some rulings which say that, if the office is one where no fees are due, but only voluntary offerings made by the votaries, the suit will not lie. But there is at any rate a clear difference between a case where the person claiming such offerings has not actually performed the ceremony at which they are performed (to which I have already referred) and one where he has performed such ceremony. Here both plaintiff and defendants claim to be entitled to perform the Urus ceremonies and to manage the offerings. In such a case there is clear authority for holding that the suit lies, viz., Sayad Hashim Saheb v. Huseinsha [1889] 13 Bom. 429 and Krishnama v. Krishnasami [1879] 2 Mad. 62. In the latter case the Privy Council allowed the offerings to be treated as wages” for the duty performed. Therefore, even if there is in law such a distinction, I do not think it applies to the present case.
8. But I do not myself think there is really any sufficient ground for such a distinction between fees and voluntary offerings, apart from the case where the rightful owner of an office is suing the usurper to recover fees for ceremonies performed by the latter, and the case of an “itinerary” office such as a preacher. I agree with the dictum in Sakharam v. Ganu [1921] 45 Bom. 683 that though the offerings may be uncertain and voluntary, still, when they are made to a particular deity (or Pir), they are the property of the temple (or shrine) concerned, and can be the subject-matter of a civil suit. But the recipients of such offerings are not necessarily the owners, and there is probably a trust involved, as pointed out in Manohar Ganesh Tambekar v. Lakhmiram Govindram [1887] 12 Bom. 247, so that the suit in regard to these Navas offerings may fall under the bar of Section 92(2), Civil P.C. : cf Sahharam v. Ganu [1921] 45 Bom. 683.
9. I think that the lower Courts were consequently wrong in law in holding that the, suit was not maintainable, so far as relates to the dispute about the right to perform the Urus ceremonies and manage the proceeds of this Navas.
10. I would remand the case for decision of the undetermined Issues Nos. 4, 5 and 6, treating them as limited to: (a) the dispute about the Navas; and (b) the right to perform Urus religious ceremonies so far as it is necessary to decide (b) for determining (a). The findings with reasons to be returned within six months.
11. Costs of this appeal reserved.
Madgavkar, J.
12. I agree.
