Hereditary priesthood is capable of partition and should be treated as immovable property according to Hindu Law.

1. This appeal is filed by the defendants in a partition suit. The following genealogy shows the relationship of the parties.

2. The only point in dispute now is whether the priesthood business which belonged to the family is capable of partition. The pleadings on this point are to be found in paras 4 and 3 of the plaint and the written statement respectively. In para 4 of the plaint, it is stated that the family of the parties, besides being cultivators, has a family business of priesthood yielding considerable income since the time of its ancestor and has monopoly of priesthood in several villages. The list of such villages is given in list B appended to the schedule.

3. The defendants stated in regard to this claim as follows: That the family members have been doing priests' works on invitations only and not on regular services of priesthood.

4. The lower Court in partitioning the family property observed that the priesthood in the 13 villages would be divided into three shares 1/3rd going to the plaintiff. It is now contended that the priesthood which has been sought to be divided in this case, is not a hereditary priesthood of the family which could be regarded as property. It is also contended that the right to perform worship in this manner is neither property nor a right which can be said to come within the explanation of S. 9 of the Civil P. C.

5. As regards the first point whether or not this is a hereditary priesthood, we need not refer further than to the plaint which has been denied in general terms. It is stated in the written statement that these people go on invitation and probably not as a matter of right. It appears to us that this is a hereditary class of priests who have got their local area in which they go to officiate as priests. Indeed before the Commissioner when the partition took place, the defendants collaborated in the preparation of the list of villages in which these hereditary priests operate and lots were drawn in the presence of the defendants who took active part in grouping the villages and also thereby consented to their division. We accordingly hold that the fact that this is a hereditary priesthood has not been denied in terms, but by implication has been accepted. There is no proof that they are anything but hereditary priests and the admission that this right existed in the family from generation to generation is quite sufficient to show that it is hereditary.

6. As regards the question whether such a right is capable of partition or not, we are satisfied that according to the notions of Hindu Law, it must be treated as property. As was observed by their Lordships of the Privy Council in 'FATTESHSANGJI v. KALLIANRAIJI, 1 Ind App 34 (PC) whenever the question arises what is immovable property we must have recourse to what is accepted in Hindu Law as immovable property. A reference to 'GUR PRASAD v. GUR PRASAD', 20 Luck 64 and 'KODULAL v. BEHARILAL,1932 AIR(Sind) 60, and the authorities therein cited would show that a hereditary priesthood is regarded as immovable property capable of partition. That being the case, the contention of the appellants that this right must be treated as not capable of partition must be overruled.

7. The appeal has no force and must fall. It is dismissed with costs.

Final Result : Dismissed