1. There is an ancient temple known as the temple of Madhukeshwar situated at Banvasi in the taluka of Sirsi in the District of Kanara.
2. There is no authentic record to show when the temple was built or the deity therein was installed or who were its early devotees, nor for the purpose of showing how and by whom the temple was endowed.
3. From such records as were available to the learned Subordinate Judge, he found that that was a Brahmin settlement, that the worship of the God and other religious rites and sacrifices were principally performed by the Brahmins, that the idol originally was founded by Brahmins and the temple itself was originally built by Brahmins.
4. The temple is admittedly a public Hindu temple and at present enjoys an annual Government grant of Rs. 4,000 and odd and has also a cash allowance of a small sum made by Sonda kings who admittedly at some period or other were connected with the temple.
5. There is no evidence to show how the temple was managed during the period of the Hindu kings or even during the earlier part of the British rule. It appears, however, that the Revenue Commissioner of the province exercised some sort of control as regards the management of the temple as over other religious institutions in his division, and this he did under the old Regulation XVII of 1827. Then came an enactment in 1863, the effect of which was to divest the Government of the rights of control and supervision over all religious institutions till then managed through their Revenue Commissioners, and to entrust the management of the religious institutions to what are called temple committees appointed under the provisions of that statute. This Act, which is Act XX of 1863, was not originally applicable to the Bombay Presidency, but by a local enactment, being Bombay Act VII of 1865, the Act was extended to this District, and it is common ground that the affairs of the Banvasi temple are regulated under these two Acts, and have been managed from time to time by temple committees appointed under the provisions of the Acts. Now, these temple committees, as the evidence shows, appoint what are called Moktesars who actually carry on the management of the temple.
6. The plaintiffs claim that they are Moktesars of this temple along with defendants Nos. 2 and 3. Of these, defendant No. 3 is a Lingayat and the rest are Brahmins.
7. It is necessary to describe the temple in some detail, and there is a plan on the record which is exhibit 25. It appears from it that the central portion., of the temple, with which only we are concerned in this litigation, consists of two main rooms, the first of which is called Bimba Mandapa and contains the Pindi or the Linga of the God Madhukeshwar on a high pedestal. A wall, which according to the appellant is a thick wall and according to the respondents just as it is shown in the plan, divides this room from the adjoining room which is technically known by the name of Ardha Mandapa. Both these rooms stand on various pillars. Now, in this second room in one corner of it and near the main entrance to it, which is technically known by the name of Mahadwara, there is an image of the God Madhawa of a life-size. There are also images of other deities in that room. Outside the Mahadwara there is a big bell. Close to this big temple, there are two other temples of God Narasimha and God Ganapati, and it is the plaintiffs' case that these also were visited by defendant No. 1 on the date in question and polluted by reason of his entry in a part of the temple which was not open to him.
8. On November 3, 1923, defendant No. 1 visited the Madhukeshwar temple in the afternoon accompanied by his family and two other Lingayats. The plaintiffs say that in spite of their having prohibited him from going into what is called the Ardha Mandapa in accordance with the custom and practice of the temple, the defendant went in, and thereby the plaint temple became polluted, necessitating the performance of an expiation ceremony or a Prayaschitta, for the performance of which they had to spend a sum of Rs. 325, and that as the defendant, in spite of the demands made in that behalf, refused to pay that amount, the plaintiffs brought the present suit for the recovery thereof. The amount of Rs. 325 is the subject-matter of prayer No. 1 of the plaint. The plaintiffs in prayer No. 2 claim also interest on the amount, and prayer No. 3 runs as follows :-
The defendant should be made to pay Rs. 50 ' Toppukanike' an offering of Rs, 50 by way of penalty according to his means for his ill action.
9. Shortly put, therefore, the plaintiffs' case is that there is a custom prevailing in the temple and known to the devotees to the effect that none else except the Dashavidha Brahmins has any right to enter the Ardha Mandapa which is, as I have stated, between the big bell and the Bimba Mandapa as also the sanctums of the Ganapati and Narasimha temples ; that defendant No. 1, who is a Lingayat, had no right to enter the sanctuary which, according to the plaintiffs, consists not only of the room known as the Bimba Mandapa but also includes the room known as Ardha Mandapa, and that his entry polluted the place and the deity. A prayaschitta, therefore, became necessary and it was performed by the plaintiffs, they had to spend Rs. 325 on that account, and they claim this sum as damages as also another sum of Rs. 50 for what they call 'Tappukanike'.
10. The suit was filed on December 20, 1923. By his written statement defendant No. 1 made various answers : (1) that the plaintiffs were not duly appointed trustees or Moktesars and were not competent to maintain the suit; (2) that the temple committee, who appointed the plaintiffs as Moktesars, was itself not duly constituted; (3) that the Brahmins alone had not the right to worship ; (4) denied that Lingayats had no right to enter the sanctum, and that there was any custom prohibiting Lingayats from entering it or that the Dashavidha Brahmins alone had the exclusive right of entry in the sanctum ; 0) that the custom, if any, was illegal and unreasonable; (6) that the 'Lingayats, and especially the priestly class of the community (i.e. Jangams) Rave similar rights to Dashavidha Brahmins ; (7) that the hall between the sanctum, i.e. Bimba Mandapa, and the place where the big bell is hung is not the sanctum or Garbhagudi as claimed by the plaintiffs, and that the sanctum consists of only the inner room, i.e. Bimba Mandapa, where the deity is installed ; and (8) that his entry did not defile or desecrate either ' the place or the deity so that no expiatory ceremony became necessary. There are other contentions as to how he came to visit the temple and how far he went inside the temple, what happened actually and whether he was asked not to proceed beyond the point up to which he had gone, which, in our opinion, are purely questions of fact. Some of these have been found in favour of the defendant and some against him. It is not necessary to consider the questions involved in these contentions as the findings on them cannot be challenged in this appeal.
11. It will thus be seen that the main contentions which were raised by the defendant were as to (1) the constitution of the temple committee, (2) the legality or validity of the appointment of the plaintiffs as Moktesars, (3) the maintainability of the suit, (4) whether the suit was sanctioned by the committee, (5) the alleged custom as to the Dashavidha Brahmins, (6), the validity and legality of the alleged custom, (7) whether his entry defiled the place, (8) whether as a result thereof it was necessary to have it purified or a prayaschitta performed, and (9) the quantum of damages.
12. Originally an issue was sought by the defendant which is issue No. 3 and which is in these terms :-'What sects or castes are included in the definition of Dashavidha Brahmins'. This issue was subsequently struck off with the consent of the defendant.
13. All the contentions of the defendant were repelled by the learned Subordinate Judge and his findings were confirmed in appeal. The learned Subordinate Judge held that the room known as Ardha Mandapa formed part of the sanctum or Garbhagudi, that the plaintiffs had proved the custom set up by them, that it is valid and lawful, that the entry of defendant No. 1 had polluted the deities in question and consequently a prayaschitta ceremony became necessary and was performed, and that the expenses were legally sanctioned and the plaintiffs were entitled to a decree to that extent. He rejected the claim for damages in prayer 3 by way of 'Tappukanike'. These findings were confirmed in appeal by the District Judge. Defendant No. 1 appeals.
14. Mr. Jayakar on behalf of the appellant raised the following points :-(1) that defendant No. 1's caste, which was Jangam or Veerashaiva Brahmin, was included in the sects of Brahmins known as Dashavidha Brahmins, and that the decisions of the lower Courts that Lingayats are Shudras were incorrect ; (2) that the plaintiffs were not duly appointed as Moktesars of the temple, and therefore, had no right to maintain the suit; (3) that the suit was not sanctioned by the committee, and that sanction was necessary under Act XX of X863 as also by the terms of the appointment of the Moktesars ; (4) that the alleged custom was not proved; (5) that the principal characteristics of a valid custom were wanting and that the custom was unreasonable ; and (6) that there was no pollution and no cause of action...
15. This brings us to the principal contention which now survives, and that-is as regards the alleged custom. It is well established by authorities that before a Court of law can give effect to a custom, the Court must be satisfied that it is definite, ancient, uniform, and not illegal in itself nor unreasonable. If I may refer to an old decision which has been referred to and followed since 1866, the position becomes clear. In S. Perumal Sethurayar v. M. Ramalinga Sethurayar (1866) 3 M.H.C. 75, it was held as follows (p. 77):-. what the law requires before an alleged custom can receive the recognition of the.; Court and so acquire legal force is, satisfactory proof of usage so long and invariably acted upon in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, or district of country ; and the course of practice, upon which the custom rests, must not be left in doubt but be proved with certainty.
To put it shortly what has long been done must be presumed to have been rightly done.
16. The contention raised by Mr. Jayakar on this issue, which is contained in. issue No. 4 and to some extent in issue No. 17, is that the evidence falls short of proving that the custom existed from times immemorial or that there was sufficient antiquity about it, and, secondly, that it was unreasonable. To prove the first we allowed Mr. Jayakar to refer to such evidence as he liked and this he has done thoroughly.
17. The first question arises as to how is a custom to be proved. Prima facie I should have thought that whether a custom was proved or not was, like any other question of fact, in itself a question to be determined upon the evidence, and a question of fact. It is true that the decisions of the Courts have laid down that two of the most important modes of proof of a custom are instances; that the custom was enforced or observed, and judicial decisions. But cannot a custom be proved apart from instances or apart from judicial decisions Can it be said that in every case of a custom you must bring forward sufficient instances? For one thing it is clear that custom may be so well recognised that no question of a breach of it may ever arise, and consequently no instances would be available. In other circumstances one party may bring forward any number of instances which may be met by an equal number of instances on the other side. In my opinion, it is open to a Court to hold a custom to be proved, even if there are no instances, if there is sufficient evidence on which the Court can rely and say that that evidence proves that a particular usage-.has been so long known and so well known in a particular district as to have: been tacitly acknowledged as the law governing that particular district. It is not necessary to refer to the various decisions on this point, but I am supported in the view which I am taking by a decision of their Lordships of the Privy Council in Ahmad Khan v. Channi Bibi (1925) L.R. 52 IndAptheir Lordships; observe as follows :-
As regards the custom in respect of which the two Courts in India have differed their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiff's side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of the High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence and its exercise without 'controversy.
18. Mr. Jayakar says that in cases of family customs as to questions of adoption or marriage this rule may be applicable as obviously there cannot be any instances, or at the most only rare instances. The answer to that is that even if the custom involves the performance of a daily act, the custom may be so well recognised by the parties that nobody except a fanatic would ever dream
The Privy Council in Palaniappa Chetty v. Deivasikamony Pandara , said that 'questions of the existence of an ancient custom are generally questions of mixed law and fact' But in several cases the question of the existence of a custom has been referred to by the Privy Council as a mere question of fact. Thus when a custom of lineal primogeniture in an impartible raj was pleaded, the Privy Council observed that the High Court was right in considering the question as merely a question of fact (Mohesh Chunder Dhal v. Sairughan Dhal . In another case the existence of a custom excluding females from inheritance was said by the Privy Council to be a question of fact (Muhammad Kamil V. Imtiaz Fatima (1908) L.R. 36 IndAp 210 : S.C. 11 Bom. L.R. 1210). A stepbrother alleged a family custom in derogation of the Mitakshara by which he was entitled to an equal share with a brother of the whole blood and the Judicial Committee observed that no evidence was forthcoming of any instance in which the custom was followed and that the question involved was one of fact only (Anant Singh v. Durga Singh (1910) L.R. 37 IndAp 191 : S.C. 12 Bom. L.R. 504). Again, the existence of a custom by which a tenant was relieved of rent of land allowed to lie fallow was said by the Privy Council to be one of fact (Raja of Ramnad v. Mangalam A Full Bench of the Allahabad High Court has explained that these cases are consistent, for while the prevalence of a practice is a question of fact, yet the question whether the practice is legally binding is a question of law (Municipal Board, Benares v. Kanhaiya Lal I.L.R. (1931) 54 All. 6).
19. The next question is whether this is a question of fact. The principle which I have been able to deduce from the decisions is that where the Court below has applied its mind to the law bearing on the question as to the requirements of a valid custom and satisfied itself that these requirements are present in a particular custom set up, unless there is an error of law, the conclusions of the Court would be conclusions on a question of fact and binding upon this Court in second appeal, and that is exactly what the Privy Council say in Sundaralingasami Kamaya Naik v. Ramasami Kamaya Naik I.L.R. (1899) Mad. 515.. It is worthy of notice that in this case the argument was addressed to their Lordships by Mr. Mayne, and the argument was that no sufficient evidence had been adduced to satisfy the requirements of law for the purpose of establishing the custom which was set up. Dealing with that point their Lordships observed as follows (p. 518) ;-
In the argument of this appeal it was attempted to be shown that in this they were wrong in law and what was laid down by their Lordships in Ramalakshmi Ammal V. Sivanantha Perumal Sethmayar (1872) 14 M.I.A. 570as to the proof which is required of such a custom was referred to. The judgment: in that case is noticed by the High Court in its judgment, and their Lordships see no reason to doubt that it has received the attention of both Courts. There is really in this case no pretence for saying that there has been any error in law; the concurrent findings must be held to be conclusive.
20. Then there is one more point to which I might refer. The question as to what witnesses should be believed or what witnesses should be disbelieved is, in our opinion, entirely a question of appreciation of evidence within the jurisdiction of the Court before whom the witnesses were examined and by whom< they were seen, and in this case on this point both the Courts have held that the evidence led on behalf of the plaintiffs was far more trustworthy than, that led on behalf of the defendant. I need refer only to the observations of the learned Subordinate Judge whom I would like to compliment on a very-fair and intelligent judgment which he has written. At p. 58 of the records paragraph 55, this is what he says :-
On the whole, the plaintiffs' witnesses seem to be trustworthy, for their evidence is supported by the documentary and the circumstantial evidence in the case. Their testimony establishes the custom alleged by the plaintiffs. Defendant No. l's witnesses are men who have not the least regard for the truth and are telling deliberate falsehood and consequently they are not entitled to any belief. Further their testimony is directly contradicted by the documentary evidence in the case and it is contradictory, inconsistent and improbable.
20. This finding was vehemently attacked, but in the end the learned counsel had to admit that it is a matter of appreciation of evidence, and it was not open to him to assail it in second appeal. Then it is clear that in all such questions as to proof of custom one material consideration for the Courts would be whether the witnesses are men who are likely to know the custom in dispute and who have special means of acquiring knowledge about it and whether they speak of their own personal knowledge in their lifetime, and if they do that, it is open to them to refer to information which they may have received from their elders or ancestors and which may be strictly speaking hearsay. If these considerations are borne in mind, and applying these considerations to the present case, we are satisfied that the conclusion reached by the learned Judge is correct. [His Lordship then dealt with the oral evidence in the case and proceeded].
21. The learned counsel on behalf of the appellant referred to the practice prevailing in other temples, some of which, he stated, were situate in the surrounding districts. In my opinion, this evidence, on the face of it, would be irrelevant. The law on the point is quite clear. The question of a custom of a particular institution has to be determined on the practice of that institution, and whatever custom may be prevalent in other similar institutions, that cannot affect the proof of the practice or custom existing in the former. On this point I may refer to the cases of Sankaralinga Nadan v. Rajeswara Dorai I.L.R. (1908) Mad. 236 : 10 Bom. L.R. 781and Anandrav Bhikaji Phadke v. Shankar Daji Charya (1883) Bom. 323. In the latter case at p. 329 it was observed as follows :-.the rights connected with the religious foundation, in the absence of any code of rules laid down by the founder or the sovereign power, have to be sought in the practice of the institution. What has long been done is presumed to have been rightly done.
22. Here we have evidence of men based on their own observations and experience as well as from traditions handed down to them by their elders or ancestors, who were qualified and likely to know the existence of this custom and who are entitled to credence by reason of their position.
23. As we agree, therefore, with the lower Court as regards the oral evidence, it is not necessary to refer to the other points made by the learned counsel on behalf of the appellant. These points are that there are no rules of the institution proving the existence of the custom and there is no written record in support of it, and therefore, the custom should not be held to be of sufficient antiquity as required by law. I have referred to some of the witnesses and there are some others on whom Mr. Murdeshwar relied. Some of them are men of position, and these witnesses carry the custom back to sixty or seventy years as far as their own personal knowledge goes, and nearly every one of them says that the custom is ancient, and they heard it from their elders. They are exhibits 364, 115, 322, 424, 356, 311, 372, 367 and 325.
24. This brings me to the documentary evidence on which the plaintiffs rely.. . Now, what is the effect of this documentary evidence? Undoubtedly, there is force in the contention that it is not very clear evidence of the exercise of the right under the custom, because in spite of reading the depositions of the two witnesses examined on behalf of Basvanneppa, the limits which he was attempting to cross are not very clear. It seems to us that if the evidence of Kotraya examined on behalf of Basvanneppa is accepted, as it seems to have been accepted by the lower Courts, the matter does not rest in doubt, for his evidence shows that the Lingayats could go as far as the bell. The other evidence shows that Basvanneppa was trying to go to a place to which he had no right to go. In any case, this evidence shows that it was not open to Lingayats as such to go to every corner of the temple, and to that extent I think it is more in favour of the plaintiffs than against them. [After examining further documentary evidence the judgment went on : ]
25. In this view it is not necessary for me to refer to the judgments of the lower Courts which refer to the admissions made by some of the witnesses on behalf of the defendant on this particular issue. We agree, therefore, that the custom was proved to be ancient by satisfactory evidence and the judgments of the lower Courts on that point are correct.
26. The next question is whether this custom is unreasonable. The way in which the appellant puts his case is that this institution was endowed by Lingayat kings, that grants were made by them, that admittedly there were Lingayat Moktesars since 1841, that some of the officers who had to attend to the religious rites used to be Lingayats and in particular the officer known as 'Wader' used to be a Lingayat ever since 1802, and that there is nothing in the records of the institution to show that there was such a custom. As I have remarked at the outset, the evidence as to the origin of the temple or its endowments is not very satisfactory or authentic, but whether the temple was. endowed by 'A' or 'B' or whether it was Brahmanical in its origin or not, seems to me to be a question of fact, and the finding of the learned Judge cannot be challenged in second appeal. But apart from that, I think the authorities on which the plaintiffs relied do support their case that in its inception the temple was endowed by the Brahmins, and that is clear from the Gazetteer of Kanara in English. It appears that the kings who were connected with the temple were first the Chalukyas. After them came the Kadamba kings and then the Vijayanagar kings, and these last had made a grant to the temple. Then came the Sonda family and originally they were Brahmins. Then a descendant of these Sondas became a Lingayat by conversion. As against that, the appellant relies on the Kanarese Gazetteer for the Karnatic Districts. There is some dispute as to whether this is a translation of the English Gazetteer or whether it is an independent book published under the authority of Government. As appears from these two books, both seem to have been published under the authority of Government. But even this book, in my opinion, does not support the appellant's case, because the only passage on which reliance is placed shows that the temple was supported, as the passage runs, by Lingayat kings of this dynasty who ruled till 1762 at Swari, This does not conclusively show that the first two kings who succeeded Vijayanagar kings were Lingayats, and we see no reason to reject the authority of the English Gazetteer on this point. But apart from that, it seems to me as a matter of principle and as a matter of common knowledge that in this country a religious institution may be endowed by a person of any caste, and yet there can be a custom, similar to this, existing in that institution in favour of the opponents of the founder of the institution and against the members of the community or family to which the founder belonged, and it is well known that such customs are existing in this country and have been judicially recognised from time to time, and we need refer only to the cases of Anandrav Bhikaji Phadke v. Shankar Daji Charya I.L.R.(1883) Bom. 323; Venkatachalapati v. Subbarayadus I.L.R.(1890) Mad. 293, which seems to us to refer to a custom very similar to the one in this case, arid Sankaralinga Nadan v. Rajeswara Dorai (1908) Mad, 236 : 10 Bom. L.R. 781 to which I have already referred. Whatever the opinions of modern society may be, and howsoever obnoxious the custom may appear to civilised people at the present day, it seems to us that it is difficult to hold that this custom was unreasonable.
27. Apart from that, there is force in the contention on behalf of the respondents that the Lingayats have, got their own temples exclusively for the benefit of their community as well as the Mahajans. It is true that this claim to exclusive enjoyment is denied by the defendants but this seems to be the plaintiffs' case, and their witnesses support it. Then again there is nothing unreasonable or obnoxious in itself in this custom having regard to the tenets of the Lingayat community tenets, which, in my opinion, are entitled to very, high respect.
28. Then another circumstance bearing on the question may be noted. Although the defendant's witnesses pretended ignorance as to the existence of the image of Madhawa, which I have mentioned, in the Ardha Mandapa, the Courts below have held, and it cannot now be denied, that there is this image there, and it is well known that this particular deity is hated by the Lingayats. It is also proved that Japa, Tapa, Yajna are performed in the Ardha Mandapa. It is true, as Mr. Jayakar says, that there is a separate place for it outside the Ardha Mandapa, but the evidence on the record shows, and that is not disputed, that in this room, which contains the image of Madhawa, all these ceremonies are performed-ceremonies in which the Lingayats do not believe. Therefore it seems to me that the origin of the custom is clearly intelligible, and the place which is the home of a deity, who is an anathema to the' Lingayats, would not be open to them for their attendance. We, therefore, reject the contention, and as these are the only two objections to the validity of the custom and the proof of it, we need not pursue the other points. Upon the whole, therefore, we have reached the conclusion that the view taken by the lower Courts is correct and to that extent the appeal must fail.
29. The only remaining question, therefore, is what are the damages to which the plaintiffs are entitled. As there was no evidence before the Court to prove any special damages and as the parties have entered into the agreement that there should be no finding on the question of pollution, I think that the plaintiffs should be allowed damages to the extent of Rs. 10. As to costs, I do not see why the ordinary rule should not be followed in this case. Therefore, there will be a decree for the plaintiffs for the sum of Rs. 10 with costs throughout, and the decree of the lower Court will be varied to that extent.
30. The agreement which is signed by counsel on both sides and to which I have referred should be filed in the record.
31. I concur.