1. This an appeal from an appellate decree of the District Court of Tinnevelly dismissing a suit brought by five Roman Catholic Vellalas as representatives of the Pillais and Mudalis of Vaddakankulam against the Roman Catholic Bishop of Trichinopoly, the Parish Priest of Vaddankankulam and certain Shanan Roman Catholics the last being sued as representatives of the Nadars, asking for certain reliefs in connection with the Holy Family Church situate in the above village. The reliefs may be grouped as follows:
1. A mandatory injunction to re-erect walls between what are called the two Churches in the above Church, the cause of action being the obstructing of the plaintiffs' right, the obtaining an order under Section 144 of Code of Criminal Procedure, and the demolition of the walls, all in November 1910.
2. A declaration that the ownership of the alleged Southern Church is vested only in the so-called high caste Christians of the plaintiffs' vagaira.
3. A declaration of the right of the plaintiffs' vagaira alone to enter it and an order restraining other so-called low caste Christians of the vagaira of the defendants 3 to 14 from entering it.
4. An order restraining the latter from entering the altar and other peetams and restraining the Bishop and the Parish priest from allowing them to do so. (The phrase 'entering the altar' is meaningless. Altar is probably used for Chancel).
5. A declaration of the sole right of the Pillais, Mudalis and so-called high caste Christians to perform services at the altar and join in the service of the congregation except on certain days.
6. A declaration of their sole right to conduct certain processions, have custody of the sacred images, and keys of the Church, ring the bell, etc.
2. A declaration that the vagaira of defendants 3 to 14 have no right to go in procession in palanquins in marriages through the streets inhabited by the plaintiffs and asking for appropriate injunctions in respect of the above declarations. The last claim was not argued before us but the others were pressed by Mr. Ranga Chariar on the grounds of agreement and custom. It has been a little difficult to ascertain the extent of the claims as the learned Vakil was naturally not familiar with the meaning of the words 'altar' and 'pulpit' and with the nature of the ceremonial and observances of the Catholic Church. He has, however, pressed those parts of the claim as have reference to the ritual as strongly as those connected with the exclusive rights in the so-called southern Church, and the custody of the whole fabric. The Bishop in his written statement has claimed that the Church fabric and site is vested in himself in trust for sacred uses and has asserted the sole right of himself and the Vicar to regulate the accommodation inside, to prescribe the part to be taken by the congregation in the services, and the ceremonies, has denied that any exclusive right or privilege can be claimed by members of any community, and has alleged that the so-called agreements have only been concessions which he has thought fit to withdraw. The Subordinate Judge who tried the case has in a judgment composed chiefly of long extracts from exhibits, sometimes inaccurately quoted, given certain reliefs which as already stated have been set aside in appeal. In arguing his case Mr. Rangachariar has relied on a Bull issued by Pope Gregory XV in 1623 recognising caste distinctions and has invited an expression from the Court as to the existence of these rights. Speaking for myself I do not propose to express any opinion on so broad a subject which has not been thoroughly argued before us and, in my opinion, does not arise. Whether the Courts have power to give declarations as between different classes of His Majesty's subjects on such matters and whether any action can be founded on a disregard of such rights save as they arise out of trusts are questions on which I have serious doubts but these doubts need not be resolved here. What we have to decide is a narrower question namely whether by agreement or caste custom a Roman Catholic can claim exclusive privileges for his caste inside a Church against the directions of the Bishop having authority over that Church. I have had some difficulty in ascertaining from Mr. Rangachariar the legal nature of the rights claimed. He did not press his claim to the ownership of any part of the site of the Church but he put his claim as a customary right to deal with immovable property - 'dealing with' covering the exercise of any exclusive privilege within the Church premises. Unfortunately he did not assist us by referring to any authorities on the subject of customary rights in alieno solo and indeed English Law furnishes no precedent for a claim so wide as this. Such customary rights as are recognised, of which there are many examples in the text books, have one feature in common, namely, that however large the community enjoying them and however frequent the exercise of the right they never amount to a continuous and complete deprivation of the owner of the soil of his natural exclusive right of user. Here the plaintiffs claim an exclusive right of user of a portion of the Church on all occasions when the Church is used, not, it is true, to the exclusion of the owner but to the complete exclusion of the owner's licensees. Again the custom on which the claim is based is not one arising out of and confined to the exercise in the particular land or tenement. On the contrary it is a so-called caste right in personam of application at all times and everywhere which the plaintiffs claim to enforce when in occupation of the tenement. I can find no precedent for any such claim. Whether the customary right be a profit a prendre or a right of unprofitable user such as to hold a fair or play games in a particular close, the custom has arisen in the close and has no other origin. Lastly the alleged customary right can only have been associated with this particular tenement since the construction of the Church between 1858 and 1872 a period quite insufficient to establish a right of customary user. Reference was made in the course of argument to the law of 'pews' in the established Church; but these are easements vested in an individual by virtue of a dominant tenement or are presumed to have had such an origin and have no relation to customary rights claimed by a class. For these reasons I have no doubt that the claim cannot be supported on the basis on which it was placed by the learned vakil for the appellants and that no customary right of the character is known to law. It is, however, abundantly clear on the record that the case has not been founded on any customary right in alieno solo, but on a claim of a right of freedom from contact which can have but one origin, strongly insisted on by all Hindu members of the caste, and evidently equally strongly adhered to by these so-called Christians--namely that of pollution. In the eyes of these plaintiffs the Shanars are non-touchables - persons whose contact defiles and entails ceremonial ablutions. Stated thus they can certainly claim a far longer period of customary observance than the foundation of this Church or the introduction of Christianity; and indeed their case on the alleged agreements means nothing more than the supposed recognition of this claim as one of right. The Vellalas are a high sub-caste of what are conveniently termed Sudras - though of course the term is not historically applicable to South Indian Dravidians, the whole caste of Sudras being however considerably below the three higher castes in the latter's estimation. The Shanars spring from a humble origin outside caste, but having raised their social position by their industry naturally seek the recognition due to their changed condition. It has been the effort of the Vellalas to keep them in their lowly status that has led to this trouble in the last 40 years. Conversion to Christianity has it seems in no way modified, the pretensions of the former or taught them that sense of equality before God which is a cardinal feature of the Christian religion as well as of other religions. Turning now to the history it appears that the case, so far as it is based on agreements, is stated as follows in the plaint. Paragraph 10 alleges a stamped agreement in 1855 signed by the plaintiffs' caste and the caste of the defendants 3 to 14 in the presence of the Parish Priest to the name of the Bishop in pursuance of which two Churches were to be built side by side with a common Chancel so that worship should be seen from both Churches. The said agreement further provided that all other rights of control should remain vested in the plaintiffs' caste. It is alleged that accordingly each caste built its Church with its own labour and by its own contributions, the edifice being completed and consecrated in 1872. Paragraph 18 alleges that as the Nadars subsequently set up claims inconsistent with the agreement a compromise was made by the Parish Priest in 1877 agreed to by both parties amending that agreement which the Bishop bound himself to adopt and in consequence issued an Epistle in 1877 setting out the amended terms. This arrangement constitutes the alleged second agreement and on these two the suit is based. The appellants' vakil argues that the Lower Appellate Court has found the first agreement to be true and should accordingly have given effect to it. There is no foundation to this argument. The District Judge finds in paragraph 2 that no stamped agreement is forthcoming, though he does find that some arrangement was come to as to separation of castes. He states also in two paragraphs of his judgment that the case as presented before him was based on what is now treated as the second agreement evidenced by Ex. F, and I have no doubt that this is so. On the failure to prove the written agreement relied on in the plaint the vakil in the Lower Court probably abandoned that part of the case and it has now been raised here for the first time since the trial. On the evidence I have serious doubts whether the two castes ever did arrive to a clear arrangement. The fact that the written agreement was never signed seems to me fatal to the suggestion - and that the Priest never contemplated binding himself is clear from the fact that the draft agreement is only drawn as between the two castes, he not being a party. Even if he had been a party I should hold for reasons that-will appear later that no such agreement could bind his successor or higher ecclesiastical authority. In this view, I have not thought it necessary to refer to Ex. XVI, the diary of Father Gregory covering the period of the dispute which demonstrates his zeal as the Parish Priest in endeavouring to make peace between the warring elements in his flock somewhat to the detriment of his authority and undoubtedly also at some sacrifice of the tenets of the faith. With regard to the alleged agreement founded on the language of Ex. 'F' the District Judge has held in para. 9 that the document is both in terms and effect an episcopal decree 'to speak of which as a contract is an obvious misdescription.' We are invited to hold that the District Judge has misconstrued the document and that whatever be its form, its operation is that of a contract binding on the Bishop's successor. Mr. Barton has called our attention to an earlier document Ex. VI(a) a decree of the same Bishop issued soon after the consecration of the Church in 1872, as showing the point of view of the Ecclesiastical superior. It refers to an arrangement made between the two parties at the time when the construction of the Church was commenced, but proceeds by way of 'allotment', assignment and 'direction' as to the share to be taken by the disputants in the ceremonies and concludes with the words 'all that I have said in this niroopam are my orders'. It appears however that the Nadars did not submit to this decree and Civil and Criminal Court proceedings between the parties continued up to 1877 (vide Exs. I, II and III) when the Nadras put in a petition to the Bishop, Ex. VI the effect of, which is that they have refused to sign an agreement but are willing to abide by his orders. It is in response to that petition that the Bishop issued his decree Ex. F. It is, therefore, a matter free from doubt that the decree is not the result of an agreement come to between the Bishop and the contesting parties, but is an order passed on a petition by one of the parties. It certainly reproduces the para that appeared in Ex. VI(a) as to the arrangement made at the time of the construction of the Church allotting separate naves in the Church to the disputants while it gives certain concession to the Nadar petitioners, but the District Judge is correct in holding that it is both in form and substance an episcopal decree. That it was intended to be such is clear from the endorsement on it by its author to the Parish Priest in which he used the Tamil word Kattalai i.e., order, exhorts the Father to get this 'reglement' faithfully observed and concludes 'Toute reserve faite de notre auto rite' The case on the second agreement therefore fails but even if there had been an agreement come to by which the Bishop bound himself to allow certain concessions to the weakness of his flock, I am clear that it was not in the power of the Bishop to use his unfettered right of control to prevent his successor exorcising the same authority. That it is unfettered, save by higher authority, seems to me clear on the canons of the Church just as it is equally clear on the law applicable that a congregation has no power to select what canons it will follow and what disregard, and that the rules and jurisdiction of officers in the Church are to be sought in the canons of the Church and must be given effect to by the Courts. Much reliance has been placed by the appellants' vakil on the decisions of the Privy Council in Long v. Bishop of Cape Town (1863) 1 Moo. P.C. 411 and Merriman v. Williams (1882) L.R. 7 A.C. 484 as laying down that the congregation of a particular Church can vary the canons of their religion from time to time. This contention, is based on a misunderstanding of the use of the term Church in those Judgments. The question in dispute in the first case was as to the authority of a certain synod in South Africa and when their Lordships say vide Long v. Bishop of cape Town (1863) 1 Moo. P.C. (N.S.) p 461 that 'the members of the Church of England where there is no Church established by law may adopt, as members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them,' the Board was explaining that in such cases a Church, in the broad sense of the word, can be constituted by persons who agree to form a new religious association. This is made abundantly clear in the later case in 1882 where their Lordships repeat the same language with reference to the Articles of the Constitution of the Church of South Africa framed in 1870 which in the opinion of the Board substantially excluded portions of the faith and doctrine of the Church of England (vide page 509). Nothing could be farther from the intentions of their Lordships than the suggestion that where there is a recognised religious association such as the Roman Catholic Church under the supreme authority of the Pope at Rome, persons who become members of that body at a particular place can, in respect of their local Church, derogate from the authority of the rulers of their community by any agreement made among themselves or adopt rules for the conduct of ceremonial observances at variance with the canons of the Church. To do this they must secede from the Roman Catholic Church and form a new religious association for themselves as was done by the Church of South Africa and by the great voluntary churches in England but having so formed a new Christian Church they would be as much bound by its articles of constitution and be as powerless to vary its rules so as to accord with local wishes, as are the congregation of the Church of England as by law established in England. These rules are in the language of the Board quoted above 'binding on those who expressly or by implication have assented to them and no stronger implication of assent can arise than the admission into the fold of the Church by baptism and the submission to its tenets by acceptance of its sacraments. Mr. Rangachariar has argued that it is open to the Courts to decide questions in dispute between the laity and the clergy, and the District Judge was in error in holding that the claims in this suit being unconnected with an office could not be adjudicated on and he relied on the decision of the Board reported in Brown v. Cure, etc., De Montrial (1879) L.R. 6 P.C. Appe 157. I entirely accept the proposition that a member of a Church need not sue by virtue of an office but the difficulty still remains as to what alleged injuries are cognizable by a Court of Law. Whatever they be, however, the authority relied on is fatal to the appellants' case on the question of the material to be examined. Their Lordships say on p. 207, that when a complaint is made by a member 'that he has been injured as to his rights in any matter of a mixed spiritual and temporal character the Courts have power to enquire into the laws or rules of the Tribunal or Authority which has inflicted the alleged injury'. Assuming for the present that there is any allegation in the plaint of action by defendants 1 and 2 inflicting on the plaintiffs such injury as a Court will take cognizance of - a matter on which I have the gravest possible doubts - there can be no question, on the authority of the three cases in the Privy Council, that we cannot go outside the Canon Law to ascertain what are the rules which are binding on the plaintiffs as members of the Church. The claims are to introduce into a Christian Edifice their practice as to pollution and thus insist on a right to be kept from contact with a lower caste, to dictate to their clergy who shall and who shall not assist the priest in the ceremonial, and to control the arrangements for festivals, processions and custody. With regard to the 1st, it is hardly necessary to say more than it contradicts the fundamental doctrine of Christianity and is at variance with the universal practice in Catholic Churches where daily persons of every degree mingle in their worship. The plaintiffs rely on the practice of a great Roman Catholic Missionary Father De Nobili in the early part of the 17th century (vide a life of him Ex. H(4)) in adopting Brahman dress and manners and in sanctioning them among his converts, but it is to be remembered that De Nobili's mission was to Brahmans alone and that he failed in his efforts just as his successor 150 years later Abbe Dubois has confessed failure. It is true that Pope Gregory XV supported De Nobili by 'according to caste converts the Cord, Kudumi, Sandal paste and purification of the body' (vide Ex. H(4) p. 27); but it is not suggested that the Pope in thus permitting the recognitions of caste has ever sanctioned such claims as arc made in this suit. Certain directions are stated to have been given by the Holy See at a later date on this point (vide extract in Ex. H p. 529 a work which apart from such extracts has no authority) but they say nothing more than that the people are not to be persuaded to renounce their usages, customs and manners 'provided that they be not most evidently contrary to Religion,' an exception which clearly covers a claim to assert caste - pollution in a Christian Church against the orders of the Bishop. In. Ex. K a life of Bishop Canoz, the writer of Exs. VI and F written by a member of the Society of Jesus, the author speaking of the construction of the Church says on page 293 the Vellalas desired that the plan 'should assign to each caste a separate part and Monseigneur Canoz 'ad Duritiam Cordis et Pro bono Pacis' sanctioned it' and the diary of the Parish Priest bears testimony to the grief of the Bishop at having to make this concession. This concession has now developed into a claim that there are two Churches belonging to each caste separately - a claim which has never received the sanction of the Bishop at the time. There can be no doubt that in his desire to see the new Church built, the Bishop shut his eyes to the real foundation of a claim so inconsistent with his faith, in the delusion that time would remove the discord - a hope that has been falsified by the quarrels of the parties from that day to this. It was, however, within his powers to allot the sittings in the Church as appears from a collection of the decrees on the Congregationis Sacrae Rituum made in 1856 and published in Rome which has been filed as Ex. X. Each paragraph contains the questions propounded from a diocese and the ruling by the Council on it. Nos. 256 and 1418 on pages 58 and 248 respectively contain decrees laying down that the Bishop has the right to arrange the seating in a Church at his absolute discretion, and there can be no doubt that in sanctioning the plan in 1854 and in permitting the separation of the castes in 1872 and 1877, the Bishop purported to exercise a power vested in him at his absolute discretion. The like power has now been exercised by the 1st defendant in forbidding that separation. It is contended for the appellants that sanction having once been given could not be revoked, that is to say, that the Bishop in issuing directions within his power binds the successor in the diocese for all time. This proposition is in direct conflict with the view expressed in a treatise on Canon Law, a work of high authority by Cardinal Zitelli revised and enlarged by Doctor Solieri, Professor of Canon law in the Pontifical Institute of the Propaganda of the Faith published in Rome in 1907. It opens by dividing the members of the Church into Clergy and Laity and lays down the broad proposition that it is the province of the former to exercise the Government in the Church and of the latter to submit to the power of the former. At page 191, paragraph 251 dealing with the episcopal power of legislation, there is a passage so pertinent to the question in issue in this case that I think it necessary to extract it in full.
3. Page 191 para. 1 No. 251: - Being the Pastor and Prince of his diocese, the Bishop has within the sphere of his jurisdiction everything that pertains to the Legislative power. He can enact for his diocese laws pertaining to his office which is to preserve and promote Divine worship and to feed the sheep entrusted to his care, so as to direct them to the ecclesiastical end. The Episcopal laws, however, should not have a sanction too heavy and passing the bonds of moderation. From this, his legislative power, results for him the right to change, to abrogate, to relax by dispensations both his own laws and the laws of his predecessors provided they have not been confirmed by an authority superior to his e.g., the Roman Pontiff or by his own oath. An oath taken by his predecessors would not bind him. From the same power results also the right to abrogate the particular customs of his diocese if they be obnoxious to the good of the Church.
4. Mr. Rangachariar has sought to find limitation to this extremely definite pronouncement in the words that immediately follow the above quotation. They have been translated and filed as Ex. N, and are as follows: - 'In which matter, however he should act prudently especially if there be any right of a third party which may suffer prejudge'. This obviously is no limitation (1) as it is only a warning to the Bishop and (2) because as between the Bishop and his flock, the latter are not 'a third party'. The next passage is also relied on. 'He cannot abrogate universal customs' (I think 'practices' would be a better and more accurate translation) because they are such as pertain to a common right. The suggestion put forward is that the rights claimed in this suit are Universales Consuetudines and come under the phrase Ad Jus Commune pertinent. The argument ignores the meaning of the whole passage. A clear distinction is made between particularis consuetudines suae diocesis, and Universales Consuetudines and the meaning is obvious. If a certain practice is a universal practice of the Church, obviously it could not be in the power of the Bishop to abrogate it within the limits of his jurisdiction, But where any particular practice has been authorised either by himself or by his predecessor for his diocese, it is clear beyond doubt on the above language that he has power to modify or abrogate it Reliance is placed on another passage at page 91 which is also extracted in Ex. M. 'As all practices are not in the knowledge of the chief in such cases, his consent, presumed but of legal efficacy, is sufficient, because in Canon Law as well as in other law, all rational practices sanctioned by sufficient length of time are naturally approved of by the chief. (This is not the translation filed as Ex. N, but is I think more accurately expressed in English). Here again there can be no real doubt as to the meaning of the passage and it does not support the argument of the appellant. It follows a passage in which the assent of the chief is stated to be required for all practices and provides for presumption of consent. It has, of course, no application where the Bishop has, with full knowledge, abrogated the particular practice. Several other passages have been extracted from this book on behalf of the appellant and are quoted in Ex. N. They have not however been relied on and an examination of them shows that they deal with customary right in Civil Law and wherever necessary a distinction is drawn between Civil Law and Ecclesiastical Law. There are others which are directions and advice to Missionary Bishops prescribing the powers of Vicar Apostolic. None of them are of any assistance to us in determining this question. On this point as to the power of Bishops, I do not think it necessary to examine the evidence any further; the passage at page 191 of the treatise being so clear and definite that it is fatal to the whole of the plaintiffs' claims. It is almost inconceivable that the congregation of the Church should think that they have the power to forbid their Bishops employing a member of a particular caste to assist him in the conduct of the service and the ceremony of the Mass. My learned brother in the course of the argument pointed out the absurdity of this contention. As to the claims of keeping the Church door and ringing the bells and other like matters, it appears on the evidence that there is an official called a Sacristan who has charge of these matters and. even if there were not, they obviously are matters in which the priest, subject to the Bishop's control, must have full discretion. I am, therefore, of opinion that the whole claim whether founded on agreement or custom fails both on the facts and on law. We are told by Mr. Rangachariar that the decision against the claims of the plaintiffs may have serious consequences, viz. these people will leave the fold of the Roman Catholic Church. That is a matter which we cannot take into our consideration. We have only according to the law laid down by the Privy Council, to ascertain who are the persons having authority over such matters and by what rules they are bound. Applying this test, it is clear to me that the plaintiffs' suit must fail and this appeal must therefore be dismissed with costs.
Sadasiva Aiyar, J.
5. As my learned brother has fully set out the pleadings and dealt with the facts in the Judgment just now pronounced by him, it is unnecessary for me to set them out in detail. The plaint in the suit in spite of (or because of) its length is rather vague as to the foundation of the plaintiffs' case. After careful consideration, I think it must be taken as based on the Bishop's Epistle of May 1877 referred to in paragraph 13 of the plaint. The first sentence in paragraph 14 is 'from that time, the high caste people of the plaintiffs' vagaira and the low caste people of the vagaira of defendants from No. 3 have been acting in accordance with the agreement termed as Epistle above.' The next paragraph 15 is as follows: - 'The rights which have accrued as mentioned above to the Pillais and Mudalis of the vagaira of the plaintiffs in respect of the suit Church have become established to the high caste people of the plaintiffs' vagaira not only on the ground of title but also by prescription and enjoyment.' (That is, I take it, prescriptive enjoyment from the date of the alleged agreement of 1877).
6. This Epistle which is said in the above paragraph 14 to be an agreement binding on all the three parties, namely, (1) the plaintiffs' faction, (2) the faction of the defendants from the third defendant downwards and (3) the ecclesiastical authorities represented in this suit by defendants 1 and 2, is Ex. F in the case. The third paragraph of Ex. F is as follows: - 'In accordance with the agreement made by the Pillaimars, Mudaliars and Nadars with the vicar of the Parish when the construction of the Church was about to be begun, all the Pillaimars and Mudaliars and such other castes as sat with them in the old Church must be along with them in the southern half of the Church, and all the Nadars together with such castes as sat with them in the old Church, must be with them in the northern half of the Church. Of whatever castes they may be, they must approach the communion table at the respective railings before the altar. Similarly also for the solemnisation of marriages and the performance of other requirements.' (The beginning of the construction of the Church was in 1854). The note to Ex. F is as follows: - 'To prevent as far as possible the recurring of the deplorable disputes that desolated the Christian congregation of Vaddakankulam, I exhort our fathers to got this regulation faithfully observed and not to favour in any thing the pretension of the rival castes. All our Christians should be well persuaded that henceforth things will go as we order it by the present order. This will be the way of preventing the endless claim's which would not fail to be raised on all sides on the day on which they would again discuss the conditions of this peace which has cost so much. 'Toute reserve faite de notre autorite.' The Epistle with the note was entered in the register of the Church, Ex. 16.
7. I do not think that Ex. F can be treated as an agreement at all between the three sets of parties. It is only an order of the then Bishop to the worshippers at the Church to conduct themselves as directed by him in this Epistle and one of the motives for issuing that order was because the Bishop thought that the two sets of worshippers had entered into an agreement or arrangement in 1854. As the suit is based upon an alleged agreement of May 1877 (miscalled, according to the plaint, an Epistle) and as the Epistle F is an episcopal decree and not an agreement, the suit fails on the short ground that the foundation for the suit has not been established.
8. I shall assume, however, that the plaintiffs can fall back on the alleged agreement of 1854 referred to in paragraph 3 of the Epistle Ex. F. It is rather doubtful whether the statement about the alleged agreement is relevant evidence as it cannot come under Clause 4 of Section 32 of the Evidence Act, it having been made long after the controversies had arisen between the two factions. It does not also come under Clause 2 as it cannot be said to have been made in the ordinary course of 'business' by the Bishop. Clearly, Clauses 1, 8, 5, 6 and 8 of Section 32 do not apply. It may perhaps be relevent under Clause 7 which refers to statements relating to a transaction mentioned in Section 13(a). Taking it then to be relevant evidence under Clause 7 of Section 32, it is evidence of a very weak character. Bishop Canoz was then being worried with the 'deplorable' and 'recurring' disputes between the two sets of worshippers. He refers to a previous Episcopal decree of July 1872 and he says that 'the devil which is an enemy to all good things in order to ruin the souls of worshippers eternally played his fraud and made them not to abide by' his decree of 1872. Ex. D, the draft of an agreement prepared in 1854 was not signed by any Pillaimar, Mudaliar or Nadar and it is clearly erroneous to call it a concluded agreement and Father Canoz's reference to a concluded agreement of 1854 seems to have been intended more to justify his decision to his doubting mind than as an accurate and reliable statement of fact. That the terms of his draft prepared in 1854, were not accepted in their entirety by the Bishop when he issued his decree of 1872 is admitted. That many Nadars refused to be parties to any agreement recognising the claims of the Vellala and Mudali faction is clear from Ex. VII. That Father Canoz's decree Ex. F of 1877 was not treated by his successor (the 1st defendant) as binding on the Episcopate is shwon by Ex. 20 where the 1st defendant modified some of his predecessor's directions as contained in Ex. F.
9. Again let us assume that there was a concluded agreement in 1854 between the two sets of worshippers as to the right to occupy seats in the Church to be thereafter built. How can such an agreement be binding on the ecclesiasticial authorities? They are the legal owners of the Church promises. Even the incomplete document Ex. D refers to the 'order' of the Parish Priest and does not say that the Parish Priest was a party bound by the contemplated agreement. Again the Parish Priest has no' right to make any such agreement with the worshippers so as to bind the Bishop of Trichinopoly or His Holiness the Pope in whom the Church buildings became vested as soon as they were consecrated to the worship of God according to the tenets of the Roman Catholic Church. Assuming (without deciding) that the Bishop can bind himself personally during the tenure of his office to allow the Vellala faction the exclusive use of the southern wing. I have not been shown any authority for the proposition that he can perpetually bind the Roman Catholic Church or his successor by any such agreement relating to the Church property. I am clear that it would be a breach of trust on his part to grant any such perpetual license to a particular set of worshippers; In fact in 1896, the 1st defendant by using the following expressions in Ex. 20, namely, 'We hereby by our own authority' (or during the period of his own bishopric) 'put it. in force and we order that no one should make any alteration without our permission' clearly asserted that Ex. F was not binding on him or upon the worshippers except to the extent that he himself affirmed, ratified and re-issued the same.
10. Then there is the larger question whether certain Roman Catholic Christians styling themselves as belonging to particular castes can by an agreement bind the succeeding generations of Christians alleged to belong to the same castes.
11. Almost all the members of the communities professing to follow the Hindu Religion belong to definite castes. The children of such caste-people (unless they become apostates or are excommunicated) are, by their very birth, members of their parents' respective castes. Many of the Hindu caste-communities living in denned localities recognize certain persons as the spiritual heads of the respective castes. Some few castes recognize also the authority of local head men or of local caste panchayats to enforce caste-discipline and to administer caste properties and the caste charities. In Suppan Asari and Ors. v. Vannia Konar and Ors. : (1914)27MLJ110 . Sankaran Nair and Ayling, JJ., state that a caste can be recognized for the purpose of acquiring rights to property and easements by prescription as if the members of the caste formed a corporation owning civil rights, Then the learned Judges say: - 'The cases show that properties are purchased for the caste and by the caste. Their right to hold and manage property has been recognized. Courts have often given effect to the resolution of the caste as a body as to the management of property. Suits have been brought on behalf of caste and against caste.'
12. Now the identity of a Hindu caste as a unit is preserved (a) by the almost total exclusion of any accession from outside, that is, by confining accessions to its members to increases by births (legitimate births except in very few cases like the. children of dancing girls) and (b) by confining valid marriages to persons belonging to the same caste. Now it is almost impossible to impose such restrictions on the so-called caste Christians because restrictions as to intermarriage (other than restrictions as to incestuous connections and bigamous connections) cannot be legally recognized among Christians. Suppose that some Brahmin Hindus become Roman Catholic converts and settle in the plaint village, can the Pillaimars and Mudaliars prevent them from using the southern wing and can the Nadars and the other converts who sit with them (like Pariah Christians) prevent the new converts from occupying the northern wing? Supposing the Bishop or the Parish Priest appointed to the Church was a Nadar or Panchama convert, can he be prevented from going into the southern wing or getting up the chance] for fear of polluting that wing or part of the Church by his presence? Can excommunication of a Pillai Christian from caste by the vote of the community because he dined in a Shinar's house be recognized by Courts and can Courts prevent such a Christian from using the southern wing because those who excommunicated him were afraid of pollution by his contact? Supposing, a Nadar Christian male marries a Vellala female and children are born and baptised into the Roman Catholic faith or suppose an excommunicated Brahmin female gives birth to illegitimate children by unknown fathers and they become Roman Catholic converts and settle in this Parish, to what caste are they to belong and in what wing of the Church are they to be made to sit? To recognize castes among Christian communities as distinct corporations with exclusive legal rights as caste corporations would lead to complications and anomalies of such a far reaching character that I am not prepared to extend the recognition by Courts of Hindu castes as distinct corporations for certain purposes to so-called caste Christians. It follows, therefore, that the alleged agreement of 1854 even if it is established, cannot bind any other persons except the particular individuals who entered into that agreement, assuming that it would bind even them as individuals. That alleged agreement being more than 60 years old, very few, if any of the parties to the agreement, can now be living. (Of the parties named in the plaint, I find only 5 could have been born then and as all of them must have been boys or children at that time, they could not have been parties to the alleged agreement.)
13. In the Kamudi temple case Sankaralinga Nadan and Ors. v. Raieswara Dorai I.L.R. (1908) M. 236 S.C. 18 M.L.J. 387 the learned Subordinate Judge excluded Hindu Nadirs from access to a particular temple on the ground that the temple itself would be polluted according to the Hindu ecclesiastical law by the admission of Shanars, into it, The Madras High Court also referred to the entry of Shanars, Pallars, Pariahs and Chucklers into the temple as causing pollution and, to the Shastras prohibiting the Shanars from so entering the temple. Their Lordships of the Privy Council (through Lord Robertson) make the following observations in their Judgment - 'It is alleged by the respondents that the presence of persons belonging to the appellants' caste is repugnant to the religious principles of the Hindu worship of Shiva and to the sentiments of the caste Hindus who worship in this temple, and that it is contrary to custom in this temple.
The controversy touches, but does not involve delicate and abstruse questions of Hindu religious doctrine.
The argument addressed to their Lordships was directed rather against the soundness of the doctrine asserted by the respondents as involving the exclusion of Nadars, and it was endeavoured to show that there were inconsistencies in the respondent's treatment of the appellants in other respects. All this, however, as a matter of theological argument, is too rationalistic; while, on the other hand, it wanders from the region of fact and custom. What the respondents have succeeded in proving is that by custom the appellants are net among the people for whose worship this particular temple exists.'.
14. Thus their Lordships have clearly indicated that what the Courts have to see is whether a particular place of worship was not intended for the benefit of any particular people and if (by the evidence of usage) it is so established, Courts should negative the claims of such people to worship therein. In the present case, it cannot be alleged for a moment that the defendants from the third defendant downwards are not persons for whose use the plaint church was built. The Bishop and the Parish Priest acting under the Bishop's directions have uncontrolled authority in regulating the seatings in the Church and in the conduct of ceremonies and festivals within the Church enclosure. That authority was never given up and could not be legally given up according to the Canon Law which is binding on the parties to this suit. In 'any matter of a mixed spiritual and temporal character, the courts have power to enquire into the laws or rules of the tribunal or authority which has inflicted the alleged injury.' Now injury by pollution to lawful worshippers in a Hindu temple or to the image in the temple through the presence of people belonging to castes below the fourth caste (known as polluting castes) is a matter of 'mixed spiritual and temporal character.' But the sentiment of pollution in a Christian Church indulged in by so-called caste Christians is neither spiritual nor temporal injury and it seams to me rather brazen to ask a Civil Court to recognize it as a legal injury giving rise to a civil cause of action. The bad usage, never accepted as lawful or invariable by the Shanars, by which in this Church finished about 40 years ago, they have been usually confined to the northern wing cannot be recognised as a reasonable custom having the force of law.
Justice and Truth with Custom's hydra brood Wage silent war
and custom, though not reasonable, sometimes wins in Courts of Justice when buttressed (as in the case of many Hindu customs) by theological writings whether genuine or spurious. The usage relied on by the appellants in this case cannot make a shadow of claim to even such theological buttressing up and Mr. Rangachariar's attempts to quote one or two ancient Roman Catholic Ecclesiastics in favour of his clients failed utterly.
15. Mr. Rangachariar in the course of his arguments referred (without dealing elaborately with the matter) to the prescriptive right to occupy pews and seats in the churches consecrated for divine worship by the Church of England as furnishing an analogy in support of the right claimed by the plaintiffs. In the first place, I am instructed by my learned brother that the system of enclosed seatings called pews does not obtain in Roman Catholic Churches and I think that this one fact makes the analogy sought to be relied on by Mr. Rangachariar largely inapplicable to this case. Aright to a pew can only be acquired by faculty or prescription, the long user necessary to establish prescription being held to be evidence of a lost faculty. Now, a faculty is 'a privilege or special dispensation granted to a person by favour and indulgence to do that which by the law he cannot do.' It seems to me that favours and indulgences granted by one ecclesiastical authority (say, a Consistory Court representing the Bishop's ancient ecclesiastical jurisdiction) can only be interfered with by himself or by the appellate ecclesiastical authorities (the Final Appellate Court being the Privy Council). A Civil Court must of course recognise the favour or indulgence granted by the proper ecclesiastical authority when temporal or mixed spiritual and temporal rights flowing from the favour or indulgence are interfered with by wrong-doers. But it seems to me that Civil Courts cannot interfere with the jurisdiction of the ecclesiastical authorities in the grant or revocation of such favours and indulgences. A grantee of a favour or indulgence can make no claim against his grant or that the favour or indulgence should be treated as irrevocable unless the grantee can invoke the doctrine of estoppel in his favour.
16. 'In the English Church before the Reformation, no seats were allowed for the use of parishioners in a Church' except in private chapels. 'After the Reformation, any question as to seats in the body of a Church was to be decided by the 'ordinary' because the place is common to all the inhabitants and it belongs to the Bishop to order it so that the service of God may be best celebrated and that there be no contention.' The duty of Church-wardens under the Bishop's control is 'to provide to the best advantage for the accommodation of all parishioners so that as far as practicable every one may have a seat and they are bound not to accommodate richer classes beyond their real wants to the exclusion of their poorer neighbours.' (Halsbury Vol. 11, page 740). I have no reason to believe that the Canon Law governing Roman Catholics is based on different principles so far as the right of the parishioners to seating accommodation in the Church is concerned. 'By the common law, there is no property in nor any right to sail or let a suit in the body of a parochial Church or chapel.' Such rights in English Churches seem to have been introduced mostly by private Acts of Parliament in derogation of the wholesome common-law rule. In Claverley Vicar, etc. v. Claverley Parishioners, etc. L.R. (1909) P.D. 195. Sir John Nicholl's remarks in an old case are referred to. Those remarks, are to the elect, that in former times faculties for pews had been granted with too great facility and 'they ought to be granted thereafter with the greatest prudence and circumspection.' In the Roman Catholic Church now in dispute, there are no enclosed seats or pews. The body of the Church consists of two wide expanses of sitting accommodation. It has been held so long ago as in 1612 (in Corven's case) that Churchwardens and Bishops 'cannot make an irrevocable assignment of seats or divest themselves or their successors of the power of making necessary changes whenever circumstances render it desirable.' Further 'the parishioners to whom seats are assigned have no right to exclude others if they and their family do not occupy the whole.' (Page 471 of Halsbury's Laws of England Vol. 11.) It seems to me therefore that the analogies derivable from the English Ecclesiastical Law relating to seats in Churches are rather against Mr. Rangachariar's contentions than in their favour.
17. The plaintiffs in this case do not allege that they were refused necessary sitting accommodation in the Church or that they were made to give up their seats for others after they had lawfully seated themselves. Their bold claim is to compel the ecclesiastical authorities to refrain from giving available seats in the southern wing to Christians whom the plaintiffs consider to belong to polluting castes and also to restrain the Nadars, etc., from occupying such available seats. The plaintiffs have, of course, given up the Hindu orthodox notion that the touch of a European is polluting (as they receive with unction holy water and sacramental bread, etc., from the European priests and bishops) but have retained that sentiment as regards their fellow-Christians of Indian nationality.
18. It is natural that I should feel a greater sense of freedom in dealing with modern undesirable innovations in support of alleged rights to exclude certain classes of worshippers from a Hindu Temple and in respect of squabbles over honorary precedence in Hindu temples than when dealing with similar disputes in a Christian Church. See Athan Sadagopacnariar Swamigal v. Elayavalli Srinivasachariar (1913) M.W.N. 289, and Gopala Moopanar v. Dhurmakarta Snbramania Iyer (1914) 24 M.L.J. 253 : (1914) M.W.N. 822. I have therefore not yielded to the temptation I have felt to express my views on the system of pews in English Churches. Nor shall I say anything on the policy of some of the Roman Catholic ecclesiastics of a by-gone generation in partially recognising caste sentiments and scruples among their converts as a matter of expediency rather than of principle. It is very difficult to describe the plaintiffs' faction as a class recognizable with reasonable definiteness as they are the descendants of Hindu converts who belonged to at least two Hindu sub-castes namely, Vellalas and Mudaliars. I find also that there are references in the documents to other castes who have been sitting in the southern and northern wings respectively as they belonged respectively to the touchable castes like the plaintiffs or the non-touchable castes like the Shanars. The plaintiffs cannot invoke (like the Hindus) the sanction of accepted sacerdotal texts (whether genuine or spurious) for perpetuating the distinction (and that, in God's House) between human beings during a particular life period by reason solely of birth as touchables and untouchables. While even among Hindus the strength of this distinction and of the alleged religious sanction therefor is according to competent authorities being weakened in these days through the effects of several unifying causes, it ia difficult for one to sympathise with the efforts of so-called caste Christians to obtain legal sanction for alleged customs among them tending in the opposite direction.
19. In the result I agree with my learned brother that the appeal should be dismissed with costs.