Venkatasubba Rao, J.
1. The question raised is an important one, namely, whether the plaintiffs are not eligible to vote in the election of the dharmakarthas of the Sri Parthasarathy Swami Temple, Triplicane, Madras, by reason of their being members (to use an expression in vogue) of an 'untouchable caste'. Mr. Ramappa, the City Civil Judge, has declared in their favour, but on appeal his judgment has been reversed by Pandrang Row, J. The two judgments reveal, in sharp contrast, two widely differing modes of approach to the problem and its treatment.
2. A scheme of administration was framed for this temple by a Special Bench of the High Court in 1925. Clause 2 provides that the management shall be carried on by the dharmakarthas under the supervision and control of a Board of Supervision. Clause 6 says that the dharmakarthas and the members of the Board shall be elected in the manner hereafter appearing. Clause 7 prescribes that every person shall be entitled to vote at any such election, whose name stands registered in the list of voters. Then follows Clause 8, the one which directly concerns us, which sets out the qualifications of persons entitled to have their names registered in that list.
3. They are-
(a) they must be Vaishnavas of the Thengalai sect,
(b) of the male sex,
(c) of the age of 21 years or upwards,
(d) resident in Triplicane (that part of the city where the temple is situate) for a period which has been specified,
(e) able to sign their names,
(f) who have made a payment of a certain specified fee.
4. The dispute now turns on the question, as the learned City Civil Judge points out, are the plaintiffs (1) Hindus, (2) Vaishnavas, and (3) of the Thengalai sect? That they possess the other qualifications mentioned in the scheme is not disputed. There is no reference in Clause 8 to a voter being required to be a Hindu; but in the expression 'Vaishnavas of the Thengalai sect' is implied the idea that being a Hindu is a pre-requisite. That the plaintiffs are Hindus is incontrovertible and no suggestion has been made to the contrary. In the lower Court some attempt was made to show that the plaintiffs were not Vaishnavas, which hopelessly failed. To make good the contention, the defendants were driven to put forward a fantastic theory, which excluded from the appellation 'Vaishnavas', many Vaishnava caste Hindus, even including a certain sect of Vaishnava Brahmin priests. Realising the untenability of this position, their Counsel very properly abandoned this ground. The plaintiffs being thus admittedly Vaishnavas, nothing turns upon the further words 'of the Thengalai sect', as the question of their sect is not in dispute.
5. The words in the scheme then clearly include all Vaishnavas of the Thengalai sect and as Lord Sankey has put it in a similar case, to those who ask why the word should include the 'untouchables', the obvious answer is, why should it not? The burden is upon those, as the learned Lord points out, who deny that the words are intended to mean something different from what they mean Henrietta Muir Edwards v. Attorney-General for Canada (1930) A.C. 124.
6. It is a primary rule of construction that whatever the instrument, it must receive a meaning according to the plain sense of the words and the sentences therein contained. When an enactment is unambiguous in itself, the question is not what the legislature meant, but what its language means, that is, what the Act has stated that it meant. This fundamental principle of construction applies not only to statutes but to wills and in fact to all written instruments. (Maxwell on the Interpretation of Statutes, 7th Ed.)
7. In Crawford v. Spooner (1846) 4 M.I.A. 179, Lord Brougham after declaring that it is not for the Judges to invent something which they do not meet within the words of the text, goes on to add an important qualification:
The true way in these cases is, to take the words as the legislature has given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the preamble or by the context of the words in question, controlled or altered. Crawford v. Spooner (1846) 4 M.I.A. 179.
8. In other words, the instrument must be construed according to its literal import, unless there is something in the subject or context which shows that this cannot be the meaning of the words. (10 Halsbury, Hailsham Ed., p. 254.) The question then is, would the adhering to the plain meaning of the words in the scheme, lead to some repugnance or inconsistency with the rest of the instrument? The respondent's counsel has not been able to show, either by referring to the preamble or the context, that by giving to the words their ordinary and natural meaning, some inconsistency with the other provisions of the scheme will result.
9. But, says the respondent's counsel, that the previous schemes which the present one replaced, contained indications that the members of the 'untouchable' castes were intended to be excluded. There was a scheme framed in 1884 for this temple, and the voters under that scheme were to possess the same qualifications as under the present one. For the purpose of settling the list of voters, it was provided that a preliminary meeting should be held, and in describing the place where such meeting was to be convened, the following words were used:
The place shall be the usual place where the business of the said temple is carried on, or if there be no such place, some convenient public place inside the temple to which all the said persons hereby entitled to vote may have free access.
10. It is contended that this clause suggests that only such persons are eligible to vote as possess a right of entry into the temple. This seems to be arguing in a circle. Under this provision, the place to be selected inside the temple shall be such that 'all the said persons hereby entitled to vote may have free access'. This refers back to the earlier provision which lays down the voters' qualifications and cannot be read, as militating against it. Indeed, the evidence in the case shows that there are parts within the composite structure of the temple to which the 'untouchables' have right of free access. In the plaint the assertion is made that the plaintiffs offer worship 'in the outer mantapam within the precincts of the temple'. The evidence given at the trial confirms this statement. The first plaintiff deposes:
I go to the temple to worship. We halt near the mantapam and offer worship; we enter the mantapam as a rule.
11. That this represents the truth there can be no doubt as the evidence remains not only uncontradicted but unchallenged. The mantapam referred to, though outside the portals of the temple, is deemed a part of the precincts of the temple. Thus, every part of the scheme can be given effect to, by the meeting being convened in the outer mantapam, which the 'untouchables' can freely enter, although it happens to be within the precincts of the temple. We are here assuming that the present scheme should be construed in the light of the previous one, although it purports to supersede the latter. Even so, there is nothing, as shown above, in the wording of the previous scheme to lend the slightest support to the respondent's contention. However, the fact is not without significance, that in the present scheme, there is no clause prescribing that the meeting shall be held within the precincts of the temple.
12. The judgment of the Judicial Committee, delivered, by Lord Sankey, in Henrietta Muir Edwards v. Attorney-General for Canada (1930) A.C. 124 contains a valuable exposition of the law on the point. Some cases have been relied on for the respondents where the word 'persons' was restricted to members of the male sex. That is explained by Lord Sankey, as due to the fact that in construing the English statutes, reference was necessary to the' Common Law disabilities of women. The learned Lord mentions Nairn v. University of St. Andrews (1909) A.C. 147 as an example. Section 27 of the Representation of the People (Scotland) Act, 1868, provided that every person not subject to any legal incapacity shall be entitled to vote in the election of a member to serve in any future parliament for such University. It was held that the word 'person' did not include women. But Lord Lore-burn referred to the position of women at Common Law, and pointed out that they were subject to a legal incapacity. As Lord Sankey points out, the various judgments on the point emphasise the fact that the legislature in dealing with the matter cannot be taken by employing loose and ambiguous words, to have departed from the usage of centuries. It is important to note the actual decision in the case. The word 'persons' in Section 24 of the British North America Act, 1867, includes members of either sex; accordingly women having the qualifications enacted by Section 23 can be summoned by the Governor-General to the Senate of Canada. The effect of this pronouncement is, that unless the antecedent history of the matter renders a different meaning necessary, the words used must receive their plain and natural meaning. Pandrang Row, J., observes:
It is difficult for me to accept the contention that these learned Judges intended to include any member of the Madiga community in the list of voters.
13. It is arguing in a vicious circle, as has been said in Leader v. Duffey (1888) 13 A.C. 294 to begin by assuming an intention apart from the language of the instrument itself, and, having made that fallacious assumption, to bend the language in favour of the assumption so made. Is there anything in the previous history of this matter to indicate that the members of the plaintiffs' caste were excluded? The system of voting did not obtain till for the first time it was introduced by the schemes that were framed. Can it be said that when the earliest scheme was settled, there was something like an established usage which subjected 'untouchables' to this disability? Ex hypothesi, at the time that scheme was settled, there was no system of voting in vogue.
14. Pandrang Row, J., next observes that for ninety years past no member of this community ever claimed to be included in the voters' list. This, in our opinion, signifies nothing. From the fact that no claim has been made, it does not follow that had the claim been made and contested, it would have been disallowed. After all, that the members of this community have abstained for ninety years from making a claim, does not destroy their legal rights. It is somewhat difficult to follow the argument that the words in the earliest scheme should be construed in the light of the acts done subsequent to that scheme.
15. Pandrang Row, J., refers to the existence of a strong sentiment against the participation of 'untouchables' in the management of temples. On the contrary, the trial Judge says, 'I do not see what sentiment is violated by allowing a Madiga to vote'. This shows the danger of referring to uncertain extraneous circumstances such as the so-called sentiments of a people. If this is a relevant consideration, are we to be guided by the sentiment that prevailed when the first scheme, or the last one, Was framed?
16. Lord Sankey in the case already cited observes:
The exclusion of women from all public offices is a relic of days more barbarous than ours, but it must be remembered .that the necessity of the times often forced on men customs which in later years were not necessary. Henrietta Muir Edwards v. Attorney-General for Canada (1930) A.C. 124.
17. This passage, in our opinion, aptly describes the position with reference to the present question.
18. We are constrained to hold that the judgment under appeal does not rest upon any legal basis. The appeal is therefore allowed with costs throughout.