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Krishnasami Tatacharyar and ors. Vs. Krishnamacharyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad313
AppellantKrishnasami Tatacharyar and ors.
RespondentKrishnamacharyar and ors.
Cases ReferredNarayan Sadanaud Bara v. Balkrishna Shideshvar
Excerpt:
religious office and emoluments, disturbance of - questions of religious tenets incidentally decided--loss of honors and voluntary offerings, damages for, not recoverable. - - they maintain that the mantram of their sect sri sailesa dayapatram, can alone be used in the ceremonial, and they complain that the defendants, the dharrbakartas of the pagoda and members of the vadakalai sect, have refused them the honors and emoluments of the thodakagar, have invaded their office, and disturbed their worship by introducing the mantram, ramanujadayapatram, and by joining in the sevakalam, and that they have withheld payment of the income due to them as adhiapaka mirasidars. they also complain that, by reason of this denial and invasion of their rights, they have been lowered in public.....1. in the ceremonial worship conducted at chinna conjeeveram there is pronounced the thodakam or invitation to prayer given by uttering the word sathitarula. this is followed by the mantram or address to a spiritual teacher and sevakalam or chant of some verses of a tamil hymn, prabhandam.2. the brahman who pronounces the thodakam is known as the thodakagar. his office is regarded as one of considerable dignity, and entitles him to certain honours and emoluments. he receives a rice cake known as arulapadu and a garland and cloth, and is provided with a gold crown. he also partakes of the emoluments of the brahmans who proclaim the mantram and chant the sevakalam. it is admitted that the office and emoluments of these assistants are known as the adhiapaka miras.3. the plaintiffs, who are.....
Judgment:

1. In the ceremonial worship conducted at Chinna Conjeeveram there is pronounced the Thodakam or invitation to prayer given by uttering the word Sathitarula. This is followed by the Mantram or address to a spiritual teacher and Sevakalam or chant of some verses of a Tamil hymn, Prabhandam.

2. The Brahman who pronounces the Thodakam is known as the Thodakagar. His office is regarded as one of considerable dignity, and entitles him to certain honours and emoluments. He receives a rice cake known as Arulapadu and a garland and cloth, and is provided with a gold crown. He also partakes of the emoluments of the Brahmans who proclaim the Mantram and chant the Sevakalam. It is admitted that the office and emoluments of these assistants are known as the Adhiapaka Miras.

3. The plaintiffs, who are Vaishnavite Brahmans of the Tenkalai sect, claim for the members of their caste and sect the Adhiapaka Miras in the pagoda of Sri Devarajaswami and seventeen other Vjagodas, and they assert that the Thodakam appertains to that Miras. They maintain that the Mantram of their sect Sri Sailesa Dayapatram, can alone be used in the ceremonial, and they complain that the defendants, the Dharrbakartas of the pagoda and members of the Vadakalai sect, have refused them the honors and emoluments of the Thodakagar, have invaded their office, and disturbed their worship by introducing the Mantram, Ramanujadayapatram, and by joining in the Sevakalam, and that they have withheld payment of the income due to them as Adhiapaka Mirasidars. They also complain that, by reason of this denial and invasion of their rights, they have been lowered in public estimation, and the revenue they had formerly derived from voluntary contributions has, in consequence, been diminished.

4. They therefore instituted this suit in October 1877. They prayed for an injunction restraining the defendants and other members of the Vadakalai sect from introducing their Mantram and taking part in the Sevakalam in connection with the ceremonial; they claimed to be entitled to conduct the Prabhandam both in the pagodas and in processions. They also prayed for a declaration confirming them in the enjoyment of the office to which they lay claim.

5. They sought to recover the value of the honours and incomes refused them which had accrued due prior to suit, or might accrue up to the execution of the decree, and damages for the injury sustained by the invasion of their office and refusal of their privileges, and they also claimed a mandatory injunction directing that the honours and income to which they asserted they were entitled should, in future, be rendered to them.

6. The plaint was rejected by the District Judge on the 21st December 1876 as asserting claims which a Civil Court could not maintain, and the order of the District Jugde was affirmed by this Court on the 23rd July 1878; but the plaintiffs obtained special leave to appeal, and on 22nd March 1879 the Privy Council reversed the orders of this Court and of the District Judge and remanded the suit for trial. Their Lordships observed it might be that no action would lie for the loss of emoluments arising from voluntary gifts nor in respect of the honors alleged to have been withheld, but that circumstance would not justify the rejection of the plaint if it disclosed a good cause of action in respect of Schedule C, and the greater part of Schedule B, and that those schedules disclosed a claim, whether well-founded or ill-founded, as of right, to certain dues for services performed.

7. The suit having been remanded to the District Court, the defendants filed their written statements.

8. They contended that the right to the Adhiapaka Miras belonged to some only, and not to all the Tenkalai Brahmans; that the office of Thodakagar formed no part of the Adhiapaka Miras, and that these points had been already determined by judicial decision; they denied that the honors specified in Schedule A and the income in Schedule B appertained to the Adhiapaka Miras; they alleged that no other income was attached to that Miras than the emoluments mentioned in Schedule 0, and that the plaintiffs were estopped from claiming any other honors or benefits by the omission to sue for them in former proceedings. They excused the refusal to the plaintiffs of the emoluments mentioned in Schedule C on the ground that the plaintiffs had neglected their duties; they contended that much of the relief sought involved matters of religious ceremonial, with which a Civil Court could not deal, and that the damages claimed were not recoverable at law; and they asserted that by usage they were entitled to pronounce their own Mantram and to join in the Prabhandam.

9. At the close of the evidence the defendants put forward a plea of imitation. Overruling this plea, the Judge held that the claim for an injunction and declaration of right was cognizable by the Civil Court, that the incomes mentioned in Schedule B* were, and the honours mentioned in Schedule A were not, enforceable by suit, and that the damages and mandatory injunction claimed could not be awarded; and he found that the Adhiapaka Miras, to which appertained the exclusive right to pronounce the Thodakam and the Mantram and to chant the Prabhandam, was the common property of all the members of the Tenkalai sect at Conjeeveram, and that these points had been determined by judicial decision; that the honours mentioned in Schedule A were due, and the items claimed in Schedule B were not due to the Adhiapaka Mirasidars, and that the plaintiffs had not been guilty of any neglect of duty; and he awarded the plaintiffs a decree for Rs. 344-2-6 in respect of the incomes of which they had been improperly deprived.

10. We observe that the decree was carelessly drawn up; it omits all reference to the injunction awarded, and it embodies not only the relief granted but grounds on which relief is granted or refused, and it does not dismiss the claim to the relief disallowed. Both plaintiffs and defendants have appealed to this Court.

11. The defendants, reasserting the objection as to limitation, which at the hearing was not seriously pressed, object to so much of the decree as declares that the Thodakam is part of the Adhiapaka Miras and that the Adhiapaka Miras belongs to all the Tenkalai Brahmans in Conjeeveram, and they maintain that on both these points there are previous decisions in favour of their contention which estopped the plaintiffs from asserting the contrary. They also complain that the decree prohibits thorn from joining in public prayers and hymns.

12. The plaintiffs contend the decree is defective in failing to award an injunction and in omitting to deal with their claim to exercise their functions in processions as well as within the pagodas. They also reassert their claim to recover compensation in money for the honours mentioned in Schedule A; they maintain the claim for the incomes in Schedule B was distinct from the claim made in a former suit, and that those incomes are proved to appertain to the office and to have been received by them up to 1873; and lastly they complain that the Judge has omitted to award the income claimed from the date of the plaint to execution. The objection that the suit was barred by limitation cannot be determined until we have come to a decision on such of the questions of fact as are still in dispute. We shall, therefore, deal with it hereafter.

13. In their appeal to the Privy Council the plaintiffs did not confine their contention to the relief sought in respect of the honours and emoluments of the offices they claimed, and we do not understand that their Lordships, in confining their observations to that portion of the claim, intended to relieve the Courts in this country of the obligation of determining whether they were competent to award any portion of the relief sought to which the plaintiffs might establish a title.

14. It was sufficient for the purpose of the appeal that their Lordships should decide that the claims made were at least in part cognizable to justify them in reversing the order rejecting the plaint. That order having been set aside without reservation, the suit was remitted in its entirety for decision. I.L.R. 2 Mad. 62.

15. It became then necessary for the Courts here to decide whether the claims made by the plaintiffs--which are not referred to in the judgment of the Privy Council--are cognizable by the Civil Court, and to what extent the relief claimed can be granted.

16. The defendants contended in the Court of First Instance that the claims made by the plaintiffs to the exclusive right to perform certain religious ceremonies and to damages for interference with that right were not cognizable by a Civil Court, and that the Civil Court could grant relief neither by declaration nor injunction if an invasion of the right was proved because the claims raised questions of religious ceremonial.

17. It is certainly not the duty of the Civil Court to pronounce on the truth of religious tenets nor to regulate religious ceremony; but, in protecting persons in the enjoyment of a certain status or property, it may incidentally become the duty of the Civil Court to determine what are the accepted tenets of the followers of a creed and what is the usage they have accepted as established for the regulation of their rights inter se. In the Civil Procedure Code, Section 11, it is enacted that the Civil Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is barred by any enactment for the time being in force, and it is explained that a suit in which the right to property or to an office is contested is a suit of a civil nature notwithstanding such right may depend entirely on the decision of questions as to religious rites or ceremonies. This explanation declares somewhat imperfectly what was the law before the Act was passed, and what, as we understand it, the law still is.

18. We say somewhat imperfectly, because the explanation, while noticing religious ritual, does not notice religious tenets. Yet there are many cases which may give rise to suits of a civil nature in which the decision may turn on tenet and not on ritual; for instance, where an endowment has been made for the benefit of persons holding a particular faith, or where an office is open only to the professors of a particular creed, it may be the sole question whether persons claiming such creed or office hold substantially the particular faith or profess the particular creeds, and the Civil Court would be compelled to consider these questions in adjudicating on the Civil right to the enjoyment of the emoluments or office. In so doing, the Civil Court pronounces no opinion on the truth of the faith or creed; it regards these questions as part of compact by which the adherents of a creed, as such, have, by their adherence to the sect, elected to be bound; and if, on other grounds, the relief sought to protect the enjoyment of such right or property is not open to objection, it is not refused because it is claimed in virtue of a religious law or a religious usage.

19. If, then, the plaintiffs have established their title to the offices claimed, the Court is competent to protect them in the enjoyment of such offices by proper processual remedies, and to award them compensation for damages sustained by the invasion of their enjoyment. But in awarding damages a Court must have regard to the general principles which regulate the award of such compensation. Damages cannot be given for the injury suffered by reason of the loss of voluntary offerings, because the injury is too remote and uncertain to be safely measured. It is not the direct and natural consequence of the wrong that the persons who might have made such offerings should so far have countenanced the wrong-doer as to refuse recognition to the just claims of the persons injured, and it is possible that other causes wholly unconnected with the wrong may have influenced them to withhold their donations. On the other hand, when voluntary offerings have been actually contributed to a fund, the refusal to a person of his right to participate in the fund causes a damage which is at once the natural consequence of the injury and measurable by the Court, and so it has been held that in the former case a Court is not, and in the latter it is, competent to award damages--Rani Sadui Kooer v. Jawalla Pershad 1861 S.D.A. . 720 Ussalulunessa v. Rahim Buksh S.D.A. N.W.P. 1861 30th September, Narayan Sadanaud Bara v. Balkrishna Shideshvar 9 Bom. H. C.R. 413. In respect, then, of the several questions raised in this suit, a Civil Court may take cognizance of the claim of the plaintiffs to the offices to which they assert an exclusive right may secure them in the enjoyment of that right, and may award them damages for the invasion of their right in so far as such damages are not too remote nor too uncertain; and we may proceed to consider whether, in respect of the matters which remain in contest, the right asserted is established, and the plaintiff's have obtained all the relief to which they are entitled.

20. It is, as we have said, not denied that some of the plaintiffs are entitled to the Adhiapaka Miras. It is contended in appeal that by judicial decisions before the institution of this suit it was determined this right belonged to some only of the Tenkalais; and it is also contended that by judicial decisions it has been determined that the Thodakam forms no part of the Adhiapaka Miras. It is therefore necessary to refer briefly to the disputes which have subsisted between the rival sects almost uninterruptedly since the commencement of this century.

21. There is clear evidence of a long-continued attempt on the part of the Vadakalais to introduce their particular Mantram into the ceremonial, and it is probable that the explanation of the contest respecting the Adhiapaka Miras lies in the opportunity afforded to the person who takes a ministerial part in its duties to introduce this Mantram. The Thodakam and the Prabhandam are common to both sects; it is in respect of the Mantram alone that these differences subsist.

22. In 1799 we find an order of the Collector prohibited the recital of the Vadakalai Mantram even in the pagoda specially devoted to the honour of their spiritual teacher Vedanta Acharyar, and inflicted a fine of Rs. 35 on the Tatacharyars for the innovation (Exhibit S.).

23. It appears from an order of 1801 that it had been necessary to take security from members of the sects to prevent breaches of the peace in consequence of the use of the Mantram, and that the Collector, after an inquiry as to usage, affirmed the order of prohibition issued in 1799 (Exhibit T).

24. In 1811 the Tenkalais obtained a decree in the Zila Court prohibiting the recital in the pagoda Vedanta Acharyar of the Mantram, Ramanujadayapatram, and enjoining the recital of the Mantram, Sri Sailesa Dayapatram (Exhibit V), and this decree was confirmed on appeal (Exhibit W.)

25. For some years after these proceedings the rival sects abstained from having recourse to the Courts. It is said that in 182 5 an important agreement was made between their leaders, of which Exhibit LL purports to be a copy. It is expressed to be given by Kumara Tatacharyar described as first Tirtam Mirasidar (first receiver of the holy water), to certain persons, described as Tenkalais of the pagoda of Sri Devarajaswami, and is to the effect following : Formerly a dispute having arisen in the matter of Adhiapakam to begin your mantram, Sri Sailesa Dayapatram, at the commencement of the Prabhandam in the said Devaraja-swami's pagodas, eighteen in all, your ancestors and our ancestors resorted to the authorities, and Terumala Tatacharyar amongst us executed an agreement to Athan Jiar among you to the effect that the usual Adhiapakam, Srirama Ayyangar, should make the Thodakam, and accordingly he and his descendants subsequently have been for the last four or five generations making the Thodakam up to this day. Now some of the persons among you for the Adhiapakam having died, certain others among yourselves should be appointed. While so, some of us having contended that it should not be done, so a dispute arose between you and ourselves and we have entered into a settlement as follows: Some of your own people should be appointed to the Adhiapakam as has been done up to this day. Appanayyangar and Tatavayyangar, who are now alive among the descendants of the said Adhiapakam, Srirama Ayyangar, who was our disciple, and their people should hereditarily make the Thodakam at the commencement of the Prabhandam as usual, and the income in sacred rice, cakes, money, etc., that may be derived from the said Adhiapakam being as usual divided into as many shares as there may be Adhiapakas who performed Sevakalam with one share over, he that makes the Thodakam shall take one share in addition and give the rest to all the Adhiapakas. Thus it shall be done without violation of custom and Athan Jiar's agreement. Moreover, on occasions of auspicious and inauspicious ceremonies in the house of the said Appanayyangar and Tatavayyangar, Sri Sailesa Dayapatram alone shall, according to temple usage, be recited, as is done in the houses of the Stallatars of the said pagoda. Thus is this agreement executed with my free will.'

26. On the 23rd October 1828 Lakshmi Kumara Tatacharyar and other Vada-kalais, describing themselves as first Mirasidars of the eighteen pagodas, instituted Original Suit 131 of 1828 in the Zila Court against Tatavayyangar and certain Tenkalais, claiming for themselves and their relations the Adhiapaka Miras, to which they asserted the honours and emoluments of the Thodakagar also appertained. They alleged that, it being inconvenient for them to attend on all occasions, they had delegated their office of deputies, of whom one was appointed the principal and received the sacred rice and cake known as the Alvar Arulapadu; that Appanayyangar their principal deputy, had recently died, and they with the other deputies were performing the duties when their office was invaded by the then defendants, and they prayed for an injunction restraining their opponents from interfering with their enjoyment of the Adhiapaka Miras, and the honours of the Thodakagar, and for damages (Exhibit A).

27. The Tenkalais, in their answer (Exhibit VIII), denied the title of the Vadakalais to the Adhiapaka Miras and the enjoyment alleged by them; they asserted, on the contrary that the Adhiapaka Miras appertained to them, and that, under an agreement made with Athan Jiar more than 100 years before, the office of Thodakagar and its honours and emoluments had been held and enjoyed by Appanayyangar and Tatavayyangar and their ancestors, who were 'common' to both parties.

28. They also referred to the agreement of 1825, and their defence in respect of the claims they vindicated follows closely the terms of that document. Tatavayyangar, the first defendant, claimed as the descendant of Srirama. Ayyangar and the heir of Appanayyangar the office of Thodakagar.

29. While this suit was pending some of the Tenkalais brought a counterclaim, Original Suit 255 of 1828, against the Vadakalais. They asserted that their Mantram, Sri Sailesa Dayapatram, was, according to usage and in virtue of hereditary right, commenced by Tatavayyangar, impleaded as first defendant; that in order to avoid disputes, Srirama Ayyangar and his descendants had been appointed by agreement as persons 'common' to both sects, but with the stipulation that the Mantram should be, Sri Sailesa Dayapatram; and they complained that the Vadakalais had interfered with their common officer in the performance of his duty and claimed damages (Exhibit B). It is to be observed that the plaintiff's in the suit to which we are referring claimed to be acting on behalf of all the members of their sect residing at Conjeeveram under a Muktiarnama, and Exhibit DDD is produced as that instrument.

30. The Vadakalais took objection to the maintenance of Original Suit 255 of 1828 on the ground that the mantram formed part of the Adhiapaka Miras, and that the right to that Miras was already in litigation between the two parties in Original Suit 131 of 1828. The validity of the objection was allowed, and the suit of the Tenkalais dismissed, though the propriety of the order may be questioned (Exhibit D).

31. In Original Suit 231 of 1828 the Vadakalais obtained a decree from the Sadr Amin on 5th May 1829 (Exhibit E), awarding to them the Adhiapaka Miras of Rs. 30 per annum, of commencing the Tamil Prabhandam and making, Sevakalam, and of the honours, malai (garland), sadagopam (crown), etc.

32. The Tenkalais presented an appeal, in which it is to be noticed that Tatavayyangar did not join. The Registrar on 6th November 1833 reversed the decree of the Sadr Amin and declared the then appellants should continue to enjoy the Adhiapaka Miras, and the Prasada Panniaram (offerings of food and cakes to the god) and the emoluments attached thereto (Exhibit E). A special appeal, presented by the Vadakalais, was rejected by the Zila Court on the 29th March 1834 (Exhibit G), and the decree of the Registrar was affirmed by the Sadr Court in their Proceedings of 12th February 1838, in which the following passage alone need be noticed :

The Registrar's decree in Appeal 135 of 1829 determined the distinct right to the Adhiapaka Miras * * as between two opposite religious sects, namely, the Tatachari section of the Vadakalai Brahmans on the one side and the whole of the Tenkalai Brahmans on the other.' It is true that besides the reading of the Tamil version of the Vedas or the Miras of Adhiapakam, this decree collaterally decided between the said religious sects the right also to the Prasadam and Panniaram or cakes in dispute and emoluments attached thereto. But it was so far only as these latter are attached to the principal matter in issue--the reading of the Tamil Vedas exclusively--that a decision was given respecting them (Exhibit O).

33. The Sadr Court subsequently reviewed this order and directed the Zila Judge to reconsider his order, and review it if he should see fit to do so.

34. In pursuance of this order the Zila Judge reconsidered his former decision, but again found on 1st July 1839 that the Adhiapaka Miras belongs to the people of that sect whose prayer is recited at the commencement of ceremonies in the pagoda; that the persons who hold the Adhiapaka Miras should enjoy the income of sacred rice and cakes, and that there was no doubt the Tenkalai prayer only should be recited (Exhibit P), and on the 25th November 1839 the Sadr Court finally affirmed the judgment of the Registrar (Exhibit Q).

35. The decree of the Registrar, it will be observed, leaves it in doubt whether he intended to award to the then appellants the honours due to the Thodakagar.

36. In effect the then appellants had not claimed the honours for themselves. Both in their own suit and in their answer to the Vadakalais' suit they admitted that the Thodakam was performed and the honours enjoyed by the descendants of Srirama Ayyangar, and all that the then appellants claimed for themselves was the recital of the Mantram and Sevakalam and the emoluments for the performance of their duties.

37. The Vadakalais were not slow to take advantage of this ambiguity. On the 11th December 1836 Terumalai Tatacharyar and Srinivasa complained that the Tenkalais had interfered with the performance by them of the Thodakam, and had deprived them of the honours and emoluments (Exhibit K). Before a final order was passed on this petition, the Tahsildar received an order from the Collector to see that the Adhiapaka Miras was allowed to the Tenkalais as directed by the decree. On proceeding to carry out this order, the Tahsildar found that the right to the Thodakam was disputed, the Tenkalais claiming it as attached to, the Vadakalais as independent of, the Adhiapaka Miras. The Vadakalais asserted the Thodakam had not been included in the decree. The Tahsildar could not obtain a copy of the decree, and finding that in the official account of allowances separate incomes were specified for the Thodakam and the Adhiapakam, he abstained from interference and made a report to the Collector, 28th December 1836 (Exhibit L). The Collector, considering that the decree awarded the Thodakam to the Tenkalais as part of the Adhiapaka Miras, directed the Tahsildar to put them in possession of the office and its emoluments, 18th January 1837 (Exhibit M), and it appears from a report dated 21st January 1837 that this order was carried out (Exhibit N).

38. In 1865 some of the Tenkalais again sued the Dharmakartas in Original Suit 66 of 1865, alleging they were entitled to the Adhiapaka Miras of reading the Tamil Prabhandam and of reciting the Mantram of Sri Sailesa Dayapatram, and that they had punctually performed the duties of their office, but that the defendants had withheld from them some of its emoluments.

39. The Dharmakartas pleaded that some only of the Tenkalais enjoyed the right to the Adhiapaka Miras, and that the right enjoyed by the Tenkalais entitled, extended only to the pagoda of Sri Devarajaswami, not to the other pagodas; that the Tenkalais were not authorised to recite the Mantram and Prabhandam as claimed by them; that the Thodakam was independent of the Adhiapakam; that the income of the Adhiapakam did not belong wholly to those of the plaintiffs who enjoyed the Adhiapaka Miras; and that the income or Prasadam called Alwar Arulapadu was not connected with either Miras, but belonged to Tatacharyar.

40. Possibly owing to the denial by the Dharmakartas of the title of the 'whole sect of Tenkalais to the Adhiapaka Miras a large number of members of that sect presented a petition on 12th August 1868 praying to be made supplemental defendants, and alleging it had been agreed the original plaintiffs should represent them in the sacred building and enjoy the emoluments. The Munsif, who apparently was not aware of the admission made in the cross-suit brought by the Tenkalais in 1828, considered that the heirs only of the Tenkalais who appeared in the Vadakalais' suit were entitled to the right to take part in the service; that those of the plaintiffs who were such heirs had under the Regis-trar's decree the right of reading the Tenkalai Vedas, and that in virtue of this right they were entitled to certain incomes he awarded them, and he declined to go further into the matters in dispute as it would involve a decision respecting religious rites.

41. At the close of his judgment he again referred to the claim made on behalf of the whole of the Tenkalai residents, and intimating that he had not deemed it expedient to recognize the right of any save those whose rights were established by the decree, and that the duty could not be punctually performed if it were conferred on a large number of persons, he suggested that, if the plaintiffs whose right he allowed, considered the other Tenkalais [326] entitled to any share in the income, they might of course come to terms with them (Exhibit CC).

42. On appeal the Dharmakartas contended that the Tenakalai plaintiffs who had obtained a decree had neither the right to commence the Prabhandam in any of the pagodas nor the Adhiapaka Miras in any of the pagodas save that of Sri Devarajaswami.

43. The District Judge held that the right of the plaintiffs was established by, the decree of the Registrar; that the right to commence the recital of the verse and chant belonged to those who enjoyed, the right to recite the hymns, and was independent of any permission on the part of the then appellants, and he increased the award of income to the full amount claimed, as the documents relied on by the Munsif related, in his opinion, to the income of one only out of the eighteen temples in which the right was enjoyed (Exhibit EE).

44. The amount decreed by the Judge was reduced by the High Court on the 11th March 1873 (Exhibit JJ).

45. On the 29th April 1874 the Tenkalais who had obtained the decree in Original Suit 66 of 1865--by an agreement which recited that as owners of the Adhiapaka Miras * * whereby Sevakalam, &c.;, are performed by commencing the Mantram of Sri Sailesa Dayapatram, they and their ancestors had enjoyed the income and had obtained the decree in Original Suit 66 of 1865--consented, in pursuance of the Munsif's suggestion, to admit the Tenkalais named in the schedule thereto, to equal rights with them in the profits and honours and everything connected with the Adhiapaka Miras, and declared that the right should not thereafter be conferred except on those Tenkalais who were connected with them.

46. Subsequently some of the Tenkalais, professing to be representatives of the Tenkalai sect, sued in the Munsif's Court to recover Rs. 56-10-3 as wages due to them for performing Adhiapakam. In this suit they claimed a portion of the emoluments of the Thodakagar, but the Munsif held, in advertence to an admission made by the Tenkalais in 1811, that the office of Thodakagar appertained to the family of Tatacharyar. ' This demand being cognizable by a Court of Small Causes, no special appeal lay, and probably for that reason the decision has not been relied on as establishing the plea of res judicata.

47. The parol evidence offered by the plaintiffs is pronounced by the Judge to be more credible and trustworthy than that produced by the defendants. Without impugning this conclusion, we are unable to say it satisfies us there has been anything approaching a continuous and uninterrupted exercise by the; Tenkalais of the office of Thodakagar, and on appeal the parties have rested their respective cases mainly on the documentary evidence. It is in reference chiefly to that evidence that we have come to the conclusions following:

We entertain no doubt that the right of the Tenkalais, whatever it may be, is not the right of a limited number out of the Tenkalai residents at Conjeeveram, but appertains to the whole of them.

48. Up to 1865 it has been uniformly asserted by the Tenkalais that the right belonged to the whole sect; it is sufficient to refer to the agreement of 1825 (Exhibit LL), the Muktiarnama (Exhibit DDD), to the plaint and Original Suit 255 of 1828, and the proceedings of the Sadr Court in 1838 (Exhibit 0).

49. The decision of the Munsif in Original Suit G6 of 1865, which apparently proceeded on a misconception of the character of the proceedings in 1828, could not bind members of the sect who were not parties to it; and the plaintiffs; whose claims were by the decision impugned, have been since recognized as entitled to an equal share with their more fortunate co-plaintiffs by an agreement made in pursuance of the Munsif's suggestion (Exhibit EEE). The duties have been committed to some members of the sect by special appointments as representatives of the whole body. This is shown by the agreement of 1825 (Exhibit LL), the second paragraph of the written statement of the Tenkalais in Original Suit No. 231 of 1828 (Exhibit 8), the agreement of 1850 (Exhibit CCC), and the deposition of Narasimacharyar (Exhibit 23). We are in agreement with the District Judge that the right, whatever it be, appertains to all the members of the Tenkalai sect residing at Conjeeveram.

50. The nature of the duties of Thodakagar, and the circumstance that he participates in some of the emoluments of the performers of the Mantram and Sevakalam, suggest the probability that at one time the office of Thodakagar was not distinct from that of the Adhiapaka Mirasidars. There is the strongest evidence to confirm this probability. The Vadakalais in their plaint in Original Suit No. 231 of 1828 claim the honours and emoluments of the Thodakagar as forming part of the Miras, and assert that having appointed gumastahs to discharge their duties as Adhiapaka Mirasidars, they had nominated one of them as the principal to receive the emoluments of the Thodakagar. Tirumala Tatacharyar and Srinivasacharyar speak of the Thodakam as closely connected with the Sevakalam--' We were waiting to make the said Thodakam and Sevakalam'--and they complained that the united functions were permitted to others and refused to them (Exhibit K).

51. But it also appears that for upwards of a century the Tenkalais had for the sake of peace conceded to a family connected by birth and creed with the Vadakalais the performance of the Thodakam, and agreed to regard that officer as common to both (Exhibits LL and S). The family so selected had, it would seem, held less pronounced opinions than the other members of their sect. They were Tatacharyars, but, as is shown by Exhibit AAA, divided, kinsmen of that family, and it was from a misconception on this point that the Munsif in Original Suit No. 878 of 1875 considered the Thodakam had appertained to the Tatacharyars--then defendants--to which branch, it seems proved, it had never been conceded.

52. Having before us the proceedings in both suits instituted in 1828, and in advertence to the written statement of the Tenkalais, we incline to think that the Registrar did not intend to include the emolument of the Thodakagar in the rights he declared to appertain to the then appellants, and although the Tenkalais were eventually placed in possession of the Thodakam, we are by no means satisfied they were allowed to retain it. In our judgment that portion of the ceremonial was by consent deputed to the members of the family of Sriramayyangar, and if, as is alleged, the family is extinct, the united sects should elect a common representative to the office of Thodakagar. On this point we allow the defendants' objections.

53. There is evidence to show that the members of both sects may join as worshippers in the Mantram and Prabhandam, but the Mantram above allowed is the Mantram, Sri Sailesa Dayapatram and, in joining as worshippers, the Vadakalais have no right to invade the office of the Tenkalai Adhiapaka Mirasidars.

54. The deposition of Narasimacharyar (Exhibit 22), the report of the Tahsildar, 20th March 1839 (Exhibit Z), and the evidence of the second and fourth witnesses for the defendants show that the Mantaram and Sevakalam are recited by the Adhiapaka Mirasidars on the occasion of solemn processions as well as in the temples.

55. The plaintiff's are entitled then to be protected from interference with their office on this occasions also.

56. We agree with the Judge that the plaintiffs have failed to prove that the incomes they claim in addition to the incomes decreed have for a long series of years been enjoyed by them. These incomes are, with few exceptions, the same to which the claim made by the Tenkalai plaintiffs in Original Suit No. 66 of 1865 was disallowed.

57. It has not escaped our attention that in that suit it was not alleged there had been a total ouster from emoluments, and that such items as are now claimed, but were then omitted, may have been enjoyed up to the date of the institution of that suit, but substantially the emoluments now claimed in addition to those decreed are comprised in that suit; and the circumstance that the suit was brought for their recovery points to an absence of enjoyment at that time. The lists produced no doubt show that at the dates they bear, 1235-1241 F. (1826-32), the Adhiapaka Mirasidars enjoyed some of the items claimed, but there is no reliable evidence of the continued enjoyment of these items for many years before the institution of this suit.

58. If these items were at any time enjoyed as of right, the right appears to have been lost by lapse of time. The office of the Thodakam was, as we have said, severed from the Adhiapaka Miras and conceded to a third party as the common representative of both sects, and it has not been shown that any right to resume it was reserved when the concession was made; this portion of the claim is likewise barred by lapse of time.

59. The decree of the Court of First Instance must be reversed in respect of the declaration that the office of Thodakam and its honours and emoluments belong to the Tenkalais. The declaration that the Adhiapaka Miras, with the exception of the Thodakam, is the exclusive right of the Tenkalais, and that it appertains to all the members of that sect residing at Conjeeveram, must be affirmed, and it must be declared that the Tenkalais are entitled to discharge the duties on all occasions in which the ceremony is performed, as well at the time of processions as at services in the pagodas, and the Vadakalai defendants must be enjoined to abstain from interfering with the Tenkalais in the recital of the Mantram and Prabhandam otherwise than as ordinary worshippers. The decree must also be affirmed in respect of the claim to the income of the Adhiapaka Miras which accrued due within six years before suit, and in other respects the claim must be dismissed. It is difficult to make an equitable order charging either party with the costs of the other in these proceedings. Both have advanced claims they have been unable to support. Under these circumstances we direct that each party bear their own costs in all Courts.

* In Schedule B were included voluntary offerings of villagers due to the Tenkalais but not presented owing to defendants interference. The Judge held that the plaintiffs had a right to them, but that the damage was too remote.


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