JUDGMENT

1. This appeal raises an interesting and difficult question. Chabbu Lal, the plaintiff, sued his cousin, Ram Chander, and two sons of Ram Chander for partition of the joint family property. The panties are descended from a common ancestor, Ganga Prasad, who was a pragwal. The family property consisted of land, houses and birt jajmant. The defendants admitted that the family had been joint and that the plaintiff was entitled to partition but pleaded that a partition had in fact already taken place and that a suit would not lie for a second partition. With regard to this birt jajmant the defendants pleaded that it had already been partitioned in the only way in which partiton was possible, that is to say, it had been agreed to divide the income. In this appeal we are only concerned with two items (1) a certain house built on land bounded by the letters B.C.H.E. on the map on the record, and (2) the birt jajmant. Dealing with the second item first, the Trial Court held that it was impossible to give a decree for partition of this birt jajmant and gave a declaration to the effect that the parties were entitled to enjoy the income of it half and half. The plaintiff appealed, and the learned District Judge held that the birt jajmant was property which had been held to be heritable and, therefore, should be capable of division. He said:

2. "There may be a little difficulty in arriving at a fair division, but that is after all a matter of procedure and the difficulty cannot be said to amount to am impossibility. When steps are taken consequent on the preliminary decree, care will be taken to make the division as far as possible either by distribution of clients or of localities" and he modified the decree of the Court below by ordering that partition should be made of the birt jajmant as well as of the other property.

3. From this decree the defendants have appealed and it is urged on their be half that it is impossible to divide once and for all this birt jajmant and they urged that the decree of the Eirst Court merely declaring the parties entitled to a moiety of the birt jajmant be restored. These is no doubt that in Beni Madho Pragwal v. Hira Lal 59 Ind.Cas. 873 : 18 A.L.J. 659 : U.P.L.R. All 227 : 43 A. 20 and Loakiya v. Sulli 57 Ind. Cas. 315 : 43 A. 35 : 18 A.L.J. 835 : 2 U.P.L.R. All 278, it has been held by a Divisional Bench of this Court that this class of property, namely, birt jajmant, has been the subject-matter of decision by the various Courts in India, that the right of owners of birt jajmant had repeatedly beenf upheld, and that such rights are heritable (sic) and some times traasfer able. The latter case is really very similar to this, the only distinction being that there the plaintiffs only asked for a declaration of their right to a given share in the birt jajmant and did not ask for partition of it. The case which seems to us most in point is Narayan Lal Gupta v. Chulhan La Gupta 14 Ind. Cas. 677 : 15 C.L.J. 376 where the whole question is considered in an elaborate judgment by Mr. Justice Mookerjee. The birt jajmant in this case consists of the offerings given to the descendants of Ganga Prasad by pilgrims when they come to bathe in the Ganges at Allahabad, for the ministrations of pragwals. It is obvious that it would be impossible to partition the future income from this source or to allot certain clients either by locality or family to one or other of the parties, for the simple reason that no pilgrim can be forced to accept the services of any particular pragwal and, obviously not being parties to this litigation, pilgrims either as a body or individually could not be bound by it. We find, however, in the schedule attached to the plaint various paraphernalia belonging to this particular birt jajmant described, namely, the pothis or books in which pilgrims enter their names, the ghat, the chaukt, the platform, the shed and the distinctive flag which indicates to the pilgrims on their arrival, where thi