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Nilakandan and anr. Vs. Padmanabha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1891)ILR14Mad153
AppellantNilakandan and anr.
RespondentPadmanabha and ors.
Cases ReferredLord Advocate v. Young L.R.
Excerpt:
malabar law - melkoima--compromise by uralers of the right to manage a devasom--claim of certain uralers to exclude others from management--limitation. - - 2. as regards the first ground of claim it is clearly untenable. it must have been well known in 1845 that the sovereign power vested in the british government and the term melkoima in document c must therefore be taken to be a word of description or distinction......is an ancient hindu temple in south malabar, and the first respondent is the representative of the nambidi family which ruled in former times over that tract of country in which the temple is situated, whilst the uraima right is vested in the illom or family of the first appellant, a nambudri brahman, from time immemorial. there is no legal evidence before us to show when and by whom the temple was founded or what was the nature of management prescribed by its original constitution. there are, however, certain facts which are established beyond doubt and which are, indeed, not disputed by the appellants, and the subordinate judge rests his decision upon them. the appellants admit, and there is considerable evidence to show that, at least from 1845, the appellants' and the respondents'.....
Judgment:

1. This is an appeal from the decree of the Subordinate Judge of South Malabar at Palghat, who dismissed the appellants' suit for a declaration that, as Uralers, they had the exclusive right of managing the affairs of Kachankurishi temple, and that neither the first respondent nor his family had a joint right of management. The institution in question is an ancient Hindu temple in South Malabar, and the first respondent is the representative of the Nambidi family which ruled in former times over that tract of country in which the temple is situated, whilst the Uraima right is vested in the illom or family of the first appellant, a Nambudri Brahman, from time immemorial. There is no legal evidence before us to show when and by whom the temple was founded or what was the nature of management prescribed by its original constitution. There are, however, certain facts which are established beyond doubt and which are, indeed, not disputed by the appellants, and the Subordinate Judge rests his decision upon them. The appellants admit, and there is considerable evidence to show that, at least from 1845, the appellants' and the respondents' families have been in joint management in accordance with the terms of the karar (Exhibit C) and the razi (Exhibit D), dated the 16th August 1845, which were re-affirmed, except in one particular, which is immaterial to our present purpose by document E, dated the 21st November 1874. The circumstances under which documents C, D and E were executed and their contents are set forth by the Subordinate Judge in paragraphs 16 to 20 of his judgment, and it will be seen that the documents referred to the first respondent's predecessors as Melkoimas and the appellants' ancestors as Uralers and that they were executed in adjustment of pending litigation regarding the respective rights of those persons. It is not urged, as pointed out by the Subordinate Judge, that either fraud or a wilful suppression of material facts vitiates the deeds of compromise; but it is contended that they do not bind the appellants because (first) all the members of their families, as constitued in 1845, had not joined in their execution, (secondly) that the compromise practically created a new right and thereby varied the original trusts of the institution, (thirdly) that the Melkoima right being a right of sovereignty, it ceased on the introduction of the British rule, and (fourthly) because no joint right can be acquired by prescription.

2. As regards the first ground of claim it is clearly untenable. Prior to 1848 the first appellant's grandfather's brother was the karnavan of his illom, and from 1848 to 1859 it was under the management of the appellant's father. From 1859 to 1876 the appellant's uncle was the managing member, and from 1876 to 1882 the appellant's elder brother was in management. The first appellant has been the head of his family since 1882, and although all the members of the appellant's family in 1845 did not sign documents C and D, the then head of the family signed them, and the arrangement made by him was acted upon by his successors and expressly recognized in 1874 and acquiesced in by all the junior members of his family for more than two generations and during a period of upwards of 40 years. The contention, therefore, that the arrangement had not the sanction of the whole family in 1845 appears to us to be entitled to no weight.

3. As regards the second contention, the Subordinate Judge is right in holding that, after the compromise of 1845 and its ratification in 1874, the appellants are not at liberty to re-open the question, whether the right of joint management recognized in 1845 was then a subsisting right, and whether as Melkoima, the first respondent's family was entitled to participate in management. It is sufficient to say that the right of joint management was brought into controversy in a Court of Justice, and that it was by way of compromise recognized as a subsisting right and as being in accordance with the prior usage of the institution. It was held by the Privy Council in Sri Gajapathi Radhika Patta Maha Devi Garu v. Sri Gajapathi Nilamani Patta Maha Devi Garu 13 M.I.A. 497 that when a state of facts is accepted as the basis of a compromise whereby a suit pending decision is amicably adjusted and when the compromise is not vitiated by fraud, those who were parties to it and their privies should not afterwards be heard to say for the purpose of reviving the controversy that the real state of things was otherwise. The principle is the same whether the mistake alleged to have been made is one of law or of fact. We may here draw attention to the words 'as hitherto' in document C as indicating that it did not purport to vary the prior usage of the institution.

4. Even assuming that the appellants may now be permitted to show that the respondents' family had no joint management prior to 1845, the evidence before us cannot be held sufficiently to establish such contention. In 1821 the Collector of the district called upon the then Nambidi to pay up the arrears of revenue due on devasom land (Exhibit I), and this implies some control on his part over the temple income. Again in Exhibit A, which is the temple pymash of 1822, the Nambidi is described as having a Melkoima right over the temple. Further, Exhibit I shows that it was the Nambidi who got the devasom land exempted from assessment by Hyder Ali in 1773. Though the pymash account is of itself no evidence of title, it is of value in this case as confirming the view since taken by the Uralers as to the position of the Nambidi. The appellants' pleader suggests that Exhibit VIII disproves Exhibit I, but the explanation given by the respondents' pleader is not without weight. It does appear, as stated by him, that Kellu Nair only distributed the assessment payable on 3,500 paras of temple land at the rate of one-fourth of a fanam per para over a portion of it at a higher rate, whilst he entered the rest as rent-free, the aggregate assessment due by the temple remaining the same. Apart from these, there are other facts which indicate that the respondents' family had a special connection with the temple in question, and special interest in its efficient management. The first appellant admits in his evidence that whenever a member of the Nambidi family became its head or, as it is said, attains the stanom of the Nambidi his installation takes place in the temple, and the representative of the first appellants' family for the time being attends the ceremony and strews rice over his head as a token of respect or salutation. It is likewise admitted by him that whenever Brahmans in that part of Malabar perform a yagam or a vedic sacrifice, they obtain first the Nambidi's permission by accepting darbha grass from him as he is seated on a raised platform in the temple and pay him a fee. It is also in evidence that the appellants live in the Cochin territory, or near Trichoor, whilst the respondents' family lives close to the temple at the distance of about a mile or two from it. The documentary evidence to which our attention is drawn on behalf of the appellants, Exhibits A, B and C to A N, refers to the first appellant's ancestor and Anr. as Uralers, and does not refer to the Nambidi as being one of them. Seeing that he is referred to as Melkoima in documents C, D and E, they are not conclusive on the subject of interference in management. However this may be, it is impossible to hold upon the evidence that prior to 1845 the Nambidi had no connection whatever with the temple nor control over its affairs, and that the recital that document C recognized and regulated the prior practice was not bond fide.

5. The next contention is that the Melkoima right is the sovereign right of supervision, and that when the Nambudris ceased to be rulers, their Melkoima ceased likewise, and that it was therefore not a subsisting legal right in 1845. This is the substantial question raised for decision in this appeal. The learned pleader forthe appellants relies on the definition of Melkoima. given by Mr. Graeme, the Special Commissioner of Malabar,about 1820, as 'the right which the sovereign power possessed over property of which ownership is in others. It is a right of superintendence, an incident of sovereignty.' The Melkoima right was also described by Mr. Justice Holloway, whilst District Judge of North Malabar, in Appeal Suit No. 118 of 1861 in the following terms: 'This is not only not the same, but absolutely incompatible with ownership. It was the right of the sovereign power possessed over property, of which the legal ownership was in others. That sovereign power and the right of interference which nothing can prevent these Malabar Rajas from asserting have of course wholly ceased.' Mr. Wigram, a former District Judge of Malabar, gives a similar definition (see Wigram on Malabar Law and Custom). On the other hand, the respondents' Pleader refers to Logan's treatise on Malabar, Vol. II., p. 177, wherein the Uraima right is included among the four functions of a desavali, and to Exhibit A in which the Nambidi is described as naduvali. It appears from Logan's Glossary, page 211, that no one was called a naduvali who had not at least 500 Nayars attached to his range; any number below that ranked a person as a desavali. Our attention is also drawn to the ancient constitution of Hindu temples in Malabar as described by Mr. Conolly, a Collector of Malabar, in his letter to the Board of Revenue which is cited in Zamorin of Calicut v. Krishnan R.A., No. 35 of 1887, not reported. 'The pagodas of Malabar,' says Mr. Conolly, 'generally are and have always been independent of Government interference. They are either the property of some influential family, the ancestors of which either built and endowed them, or, as is more commonly the case, are claimed and managed by a body of trustees who derive their right from immemorial inheritance and who conduct the affairs of the temple under the patronage and superintendence of some Raja or other person of consideration. This latter state of things, it will be seen, is nearly that which the Government are now desirous of introducing everywhere.' It will be seen that the above passage throws light also on the policy which the British Government was inclined to adopt, viz., that of continuing the supervision of the Raja, who was the patron, as it originally existed in the interests of certain temples, instead of referring that supervision solely to the status of the person exercising it as sovereign for the time being and declaring it to have ceased on the annexation of Malabar. There is some indication of such policy having been pursued in this case--as in the Guruvayur Devasom case; Zamorin of Calicut v. Krishnan R.A., No. 35 of 1887, not reported--for the Revenue authorities have corresponded with the Nambidi relating to matters connected with the temple, whilst there are traces of the continuance of the right of interference by the Nambidi family subsequent to the annexation of Malabar. The real question then, which we have to decide, is this--are we to ignore the state of things which has existed admittedly from 1845 and probably from the commencement of the century and which was submitted to by the Uralers as one consistent with the ancient usage and constitution of the institution and continued and countenanced by the British Government as conducive to the protection of the interests of the institution, and are we now to deduce a rule of decision from the abstract theory of Melkoima as it existed prior to British rule, and to change the usage and unsettle what was set at rest by a compromise 40 years ago? We have no hesitation in answering the question in the negative. In cases in which there is a conflict between an ancient theory and the modern usage in a religious institution, Courts of Justice must see whether the usage is referable to some other legal origin with reference to the facts of each case, if not to the ancient theory. As observed by the Judicial Committee in the Ramnad case, Collector of Madura v. Moottoo Ramalinga Sathupathy 12 M.I.A. 397 with reference to a theory deduced from the ancient Hindu law of Niyoga or appointment in connection with the law of adoption, the abstract theory has a juridical value for the purpose of explaining and upholding the existing usage and not for the purpose of ignoring it. It is then urged for the appellants that the joint enjoyment, however long, can be referred to no legal origin. But it must be observed that, from what has been stated above, such legal origin may be found in the continuance of what was Melkoima in ancient times as a co-trusteeship subsequent to the British rule with the tacit sanction of the British Government, or in the status of the Nambidi family as patrons of the institution as part of its ancient constitution, a status which did not cease on the introduction of the British rule. It must have been well known in 1845 that the sovereign power vested in the British Government and the term Melkoima in document C must therefore be taken to be a word of description or distinction. The parties concerned took for their guide the subsisting usage of the institution and agreed to continue it without caring to ascertain to what legal relation of the Nambidi to the temple the continued participation in management subsequent to the British rule might be referred.

6. As regards the last question, viz., of limitation, it has been decided by the Privy Council that the 12 years' rule is applicable when there is no question for recovering any property for the trusts of the institution, and when the plaintiff sues only for his personal right to manage or to control the management of the endowment--Balwant Rao Bishwant Chandra Chor v. Purun Mal Chaube. L.R. 10 I. A. 90). When two persons have been in joint management for more than 40 years, the presumption is that they have a joint right of management. This is not a case of exclusive possession of portions of the same property at different periods or a case of contraria possessio and the decision in Lord Advocate v. Young L.R. 12 App. Ca. 544) is not in point. The decision of the Subordinate Judge, that the claim is barred by limitation, is also right.

7. The appeal fails and is dismissed with costs.


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