1. Judgment in this case was reserved as we wished to consider, in connection with an argument of Mr. P.R. Sundara Aiyar, to be noticed presently, the true effect, with reference to the present claim, of the adjudication in O.S. No. 2 of 1896 on the file of the Subordinate Judge's Court of Tinnevelly, where it was established that the right to the Adhyapakam office in the temple of Nachiar and Vatapatra Sayanar in Srivilliputhur as well as in all the shrines attached thereto was vested in the Thengalai and other Thirtakars, residents of that place, as found in the decree and judgment, and that the Vadagalais other than the Thirtakars possessed no interest whatsoever in the office. As was intimated by us in the course of the argument, t here can be no doubt that in that litigation the then plaintiffs acted on behalf of all the Thengalais, while the then defendants respresented the Vadagalais of the place, having been duly constituted so to represent by the notification issued by the Court under Section 30 of the Code of Civil Procedure. As the present plaintiffs belong to the community of Vadagalais of Srivilliputhur, the previous adjudication cleary binds them as mere Vadagalais, if the Vedanta Desikar shrine be, as contended on behalf of the Thengalai defendants in the present suit, a shrine attached to the Nachiar and Vatapatra Sayanar temple.
2. No doubt, in the execution proceedings taken in that suit, it was held that the shrine in question was one so attached. The execution was, however, with reference to the enforcerment of the order restraining the then actual defendants from interfering with the discharge of the duties of the Adhyapakam office. The present plaintiffs, not having been impleaded in the previous suit as defendants actually, were not liable to be proceeded against in execution for any alleged disobedience of the injunction granted therein-Sadagopa Chart v. Krishnama Chari I.L.R. (1889) M. 356. Consequently the finding in the execution proceedings as regards the question whether the Vedanta Desikar shrine was appurtenant to the main temple or an independent institution, is not res judicata, and that question would have to be tried in the present suit regarding the plaintiffs as 'mere members of the Vadagalai community and a fortiori if, as the plaintiffs allege, the right of management of the shrine belongs to them.
3. Before, however, passing orders as to the trial of the point, we proceed to deal with the argument of Mr. Sundara Aiyar referred to, viz., that even on the assumption that the shrine in question is subordinate and attached to the big temple, the finding that the Adhyapakam miras belongs exclusively to the Thengalais, and the Vadagalai Thirtakars, is with reference to the plaintiffs' special capacity as trustees of the shrine, res inter alias acts and therefore it is open to them to prove that the rightful holders of the office are not the Thengala is but the Vadagalais, to restrain the former from interfering with the office and to ensure the observance of the usage of the institution by executing the duties of the office from the Vadagalais. Though the decision of the question thus raised is not altogether free from difficulty, we are of opinion that the contention ought not to prevail, as the office of Adhayapakam in the shrine belongs, according to the plaintiffs, exclusively to the Vadagalais of Srivilliputhur and is vested in them and their descendants hereditarily, and as between that community and the Thengalais of the place the adjudication in favour of the latter in the litigation of 1896 is as already stated, absolutely binding. The case, with reference to these special facts, must be held to be governed by the rule stated in Bigelow on Estoppel as an exception to the general doctrine that judgments in personam bind only parties and privies, according to which exception the relation established between parties by such judgments is conclusive against third persons in the absence of fraud upon them. (5th Edition, p. 150). A clear instance of this exception is furnished by Candee v. Lord 51 Am. Dec. 294 ; 2 N.Y. 269, followed in other cases, where it was held by the Supreme Court of New York that a judgment is conclusive evidence in a creditor's suit founded on it, as against the other creditors of the debtor that the plaintiff is a creditor and to the amount awarded him by the judgment, unless it is impeached for fraud or collusion. In the absence of any precedents, Indian or English, elucidating this point, the reasoning of Gardiner J. who delivered the judgment may usefully be set forth. He observed :-'A debtor may be said to sustain two distinct relations to his property, that of owner and quasi trustee for his creditors. As owner he may contract debts to be satisfied out of his property, confess judgments, create liens upon it, sell or give it to others at pleasure and, so far as he is personally concerned, will be bound by his own acts. But the law lays upon him an obligation to pay his debts and holds him, in behalf of his creditors, to the exercise of good faith in all transactions relating to the fund upon which they must depend for payment. He can, therefore, neither create a debt nor do any of the things above mentioned mala fide to their prejudice. The common law, of which the English Statute and our own is but the exposition, declares that every such debt, judgment or assurance contracted or given with the intent to hinder, delay or defraud his creditors is as against them to be void. And equity in many cases holds the debtor and his confederates in the fraud as trustees for the parties aggrieved. The rights of creditors to the property of the debtor are to be worked out through the different relations to which I have alluded. In creating debts or establishing the relation of creditor and debtor, the debtor is accountable to no one unless he acts mala fide. A judgment therefore obtained against the latter without collusion is conclusive evidence of the relation of debtor and creditor against others : (1) because it is conclusive between the parties to the record who in the given case have the exclusive right to establish it ; and (2) because the claims of other creditors upon the debtor's property are through him and subject to all previous liens, preferences or conveyances made by him in good faith. Any deed, judgment or assurance of the debtor, so far at least as they conclude him, must estop his creditors and all others. Consequently neither a creditor nor stranger can interfere in the bona fide litigation of the debtor or retry his cause for him or question the effect of the judgment as a legal claim upon his estate. A creditor's right, in a word, does not arise until the latter has violated the tacit condition annexed to the debt, that he has done and will do nothing to defraud his creditors.
4. Where, however, fraud is established, the creditor' does not claim through the debtor but adversely to him and by a title paramount which over-reaches and annuls the fraudulent conveyance or judgment by which the latter himself would be estopped. It follows, from the principles suggested, that a judgment obtained without fraud or collusion and which concludes the debtor, whether rendered upon default, confession, or after contestation is, upon all questions affecting the title to his property, conclusive evidence against creditors to establish first the relation of creditor and debtor between the parties to the record ; and, second, the amount of the indebted-'ness' (51 Am. Dec. at pp. 295, 296.)
5. The Full Bench ruling in Periasami Mudaliar v. Seetharama Chettiar I.L.R. (1903) M. 243 that, independently of the original transaction, the decree against a father creates by its own force a debt against him which his sons according to Hindu Law are bound to pay, unless it is illegal or immoral, would seem to rest on the principle enunciated in the passage quoted above.
6. Turning to the present case, it is clear that the right of the trustee to require compliance with the usage of the institution in regard to the Adhayapakam office, which office, by virtue of its hereditary character stands, according to the law of this country, on a par with interests in immoveable property, is necessarily linked with, dependent upon and subordinate to the right of the exclusive mirasi holders of the office-dependent and subordinate because it is by them and by them only that he can get the functions of the office performed. It follows that an adjudication obtained against them would be as binding on him as it is on them in the absence of fraud or collusion. A different view would be to uphold a contrariety of conclusions leading to a deadlock, that is to say, on the one hand the Thengalais are entitled to exclude every Vadagalai interfering with their exercising the functions of the office in the shrine by virtue of the former decision, and yet, on the other hand, the trustee thereof is entitled to insist on the Vadagalais performing them. It would, therefore, seem to be the better opinion that the trustee is also concluded by the judgment which declared that the body of people put forward by him as entitled to the office were not so entitled. It is scarcely necessary to say that there was nothing to prevent the present plaintiffs in their alleged character of trustees making themselves parties to the former suit and resisting the claim of the Thengalais as best they could and if possible preventing an adjudication in their favour. The omission to do so could not properly be held to give them the right to get rid of the effect of a decision against those very parties in whose right in truth the plaintiffs are now endeavouring to deny the title of the successful party. As the previous adjudication has not been impeached on the ground of fraud, the contention under consideration must be held to fail and it will not be open to the plaintiffs to question the title of the, Thengalais to the office of Adhyapakam in the Vedanta Desikar shrine, if that is found to be an adjunct of the main temple.
7. The Subordinate judge is called upon to submit within three months from this date findings on the following points :-
(1) Whether the plaintiffs are the hereditary trustees entitled to the management of the Vedanta Desikar shrine:
(2) Whether the said shrine is, or is not, one of the shrines attached to the Nachiyar and Vatapatra Sayanar temple : and
(3) Whether the plaintiffs are disentitled to a declaration of their alleged right as trusees with reference to the proviso to Section 42 of the Specific Relief Act.
8. We direct that the trustees of Nachiyar and Vatapatra Sayanar temple be made defendants in the case. The trial of the issues should take place after these newly added defendants have had notice of their inclusion as parties and after they have had time to appear and file written statements. If necessary, further issues may be framed on their written statements.
9. Fresh evidence may be received.
10. Seven days will be allowed for filing objections.
11. In compliance with the above order, the Subordinate Judge, Tinnevelly, submitted the following
12. FINDINGS:-* * * That the Vadanta Desikar shrine is an independent institution and is not under the control of the Vishnu Committee and of the Nachiar Devasthanam trustees and is not attached to that Devasthanam He also found the 1st issue in plaintiff's favour
13. As regards the 3rd issue he found that the plaintiffs were in full possession of all their rights in respect of this Desikar shrine and this issue therefore he found in their favour.
14. This appeal coming on for hearing, after the return of the above finding, 16th, 17th and 18th March 1909 the Court delivered the following
15. The Subordinate Judge has dealt very fully with the evidence on the issues sent down to him and we accept his findings.
16. The plaintiffs have shown that from the early years of the 19th century their predecessors and themselves have managed the affairs of the Vedanta Desikar temple, and there is on the other side nothing to show that the trustees of the Nachiar temple have ever interfered with them.
17. The strongest evidence in support of the defendants' case is the payment of paditaram from the Nachiar temple funds but that, as the Subordinate Judge shows, is not by any means conclusive. Exhibit XI-A shows that paditaram is paid by the Nachiar temple trustees to persons and institutions who are not shown to be in any way under their control. Apart from this evidence there is really nothing else to rebut the evidence on the side of the plaintiffs. The Subordinate judge shows that the admissions on which the defendants rely (sic) not amount to admissions that the temple is under the control of the Nachiar Kovil trustees and the circumstances in which those admissions were made indicate that they cannot be taken as conclusive. The fact that till recently the plaintiffs have not styled themselves Dharmakartas but only Archakas is of no value when the two offices, as occurs not infrequently in the case of small temples, are united in the same person or persons.
18. The temple in question, though close to the gate of the Nachiar temple, is not within its walls, and the presumption to be drawn from its position is not strong. Against this evidence the plaintiffs bring evidence that before the formation of the Temple Committee under the Act of 1863 the Government treated their temple as a separate institution and that since that date they have rendered no accounts to the trustees of the neighbouring temple and have not acted in obedience to them or deferred to their authority.
19. In this state of the evidence we must accept the findings and reverse the decree of the Subordinate Judge.
20. In our decree, therefore, we shall have to declare that the Vedanta Desikar temple and the property in the plaint schedule are not attached to the Nachiar and Vatapatra Sayanar temple within the meaning of the decree in Original Suit No. 2 of 1896 on the file of the Temporary Subordinate Judge's. Court, Tinnevelly, and the rights of the plaintiffs in respect of the Vedanta Desikar temple are not affected by that decree or the execution proceedings taken thereunder, and that the plaintiffs are Dharmakartas of the Vedanta Desikar temple and entitled to manage it and its property uncontrolled by the trustees of the Nachiar and Vatapatra Sayanar temple. And we shall have to add an injunction restraining the trustees of Nachiar and Vatapatra Sayanar temple from interference with the plaintiffs in their management of the temple.
21. But in order to decide all the questions in the suit it will be necessary to ask the Subordinate Judge to record a finding on the issue whether the plaintiffs are holders of the Adhyapakam office in the temple of Vedanta Desikar to the exclusion of the defendants or whether the defendants are also entitled thereto, and if the defendants are found to be entitled to the Adhyapakam office, then a finding should be recorded on the 7th and 8th issues in the suit. Fresh evidence may be taken.
22. The finding should be submitted in six weeks, and seven days will be allowed for filing objections.
23. In compliance with the above order, the Subordinate Judge of Tinnevelly submitted the following.
FINDING:-* * * I find the former part of the issue in the affirmative and the latter part in the negative.
24. In view of the above finding, the remaining two issues need not be tried according to the order of remand of the High Court. But the evidence given by plaintiffs covers these two issues also and on it I shall find the 7th issue in the suit referred to above in the affirmative. On the 8th issue burden lies on defendants to prove the point but they have not adduced any evidence in support of it. On the contrary plaintiffs' witnesses swear that Adhyapakam is performed in the Vedauta Desikar temple in all the days in the year but not on the Adhyana festival days and on the annual Thiruuakshatram day only as contended by defendants. My finding on the 8th issue is in the negative.
25. This Appeal coming on for final hearing after the return of the above finding, the Court delivered the following
26. We cannot give any weight to the affidavit in support of an application for adjournment made before the Subordinate Judge and we accept the Subordinate Judge's findings on the evidence.
27. In the result, the plaintiffs will have the declaration for which we have already provided as to their right to manage the temple and, in regard to the matter now in question, a. declaration that the plaintiff's are the holders of the Adhyapakam office in the Vedanta Desikar temple to the exclusion of the defendants and a further declaration, as set out in the 7th issue, that they and the Vadagalai Vaishnavite Brahmans are entitled to perform the recitations there set out on the occasions mentioned there and in prayer II of the plaint. They will also have an injunction as before provided in regard to the management of the temple, and an injunction prohibiting the defendants from interference with the plaintiffs in the performance of the duties of the Adhyapakam office and with them the Vadagalai Vaishnava Brahmans on the occasions in respect of which the declaration has been given under the 7th issue. The plaintiffs' costs throughout will be paid by the contesting defendants.