1. The question in this case is whether the daughter of a Thathachari belonging to the Thandri family is disqualified from performing a festival in the Conjeevaram Temple by reason of the fact, that she has been married into another family. The marriage may give her a different gotram but it is not right to say that she ceases to belong to the family of her father on that account. She and her sons would be the heirs to her father's property. The right to perform a festival is a secular privilege, and has no connection with the right to Theertham and other honours. The learned Judge in the Court below seems to have thought that the claim to perform the festival carried with it the right to Theerthams and to the other honours belonging to the Thathachari family. In this Court this portion of the judgment was not sought to be supported. It was argued that the right to perform a festival conferred as office, and that such an office could be held only by a male member of the Thathachariar's family. There is no analogy between the holding of a subordinate trusteeship like a Kattalai Dharmakarthaship and the performance of a festival. The cases quoted relate to the former class, and have no bearing on the latter. On the other hand it has been held in this Court that a female is not incompetent by reason of her sex, from claiming the Archaka right. Tangirala Chiranjivi v. Raja Manikya Rao : (1914)27MLJ179 , Raja Rajeswari Ammal v. Subramanya Archahar (1915) 30 M.L.J. 222. It would ordinarily be the duty of the temple authorities to receive the money that may be tendered to perform a festival from whomsoever it may come. In Vengamuthan v. Pandaveswara I.L.R. (1882) M. 511 it was held that such a contribution from a dancing girl should not be rejected. Prima facie therefore, the daughter of the last Ubayakkar would be entitled to ask the temple trustees to receive the expenses of the festival from her. If it is objected that none but a male could perform such a festival, it is for those that set up this special custom to prove it. However, we do not want to decide this case on the ground that the defendants have not established their contention. We are clearly of opinion that the learned Judge is wrong in holding that the burden was on the plaintiff. In a case like this, when both sides have let in evidence the best course would be to weigh the evidence as a whole, without throwing the burden of proof on either party. In this view we must reverse the decree of the learned Judge of this Court and of the District Judge and remand the appeal to him for disposal on the merits.
2. Before we send the case down it is desirable to advert to the extreme contention that was put forward in this Court that in all cases where evidence as to custom has been let in, we are bound to weigh such evidence and decide for ourselves upon the materials. Mr. Ramachandra Aiyar who came in at a later stage of the case conceded that this contention is not supported by authority. The learned vakil argued that the question whether on the facts as found, the courts below were justified in saying that a custom has not been proved is a point on which the High Court is entitled to draw its own inference. To the proposition thus advanced we see no objection. But we must point out that the value to be attached to the evidence let in, its reliability and in a measure, its relevancy are all matters for the court below and that the High Court would not be justified in weighing the evidence, as if it were sitting to hear a first appeal.
3. It is open to doubt whether the expression, 'a usage having the force of law' in Section 100 (a) C. P. Code, should not be confined to the usages of the country or of the community as suggested by Petheram, C. J. in Nivath Singh v. Bhikki Singh I.L.R. (1885) A. 650. Customs like pre-emption, the law merchant and usages like those referred to in Section 11 of Act VIII of 1865, seem to have been in the contemplation of the legislature. It seems doubtful whether a private right, like the one, we are considering falls within Section 100, Clause (a). However that may be, we feel no doubt that the High Court should not be called upon to examine the oral and documentary evidence relating to a private custom as if it were hearing a first appeal.
4. For the reasons already given, we reverse the Second Appeal and remand it for disposal on the merits. The costs will abide the result.