Sadasiva Aiyar, J.
1. The plaintiffs are the appellants in this second appeal. They brought the suit out of which this second appeal has arisen as representatives of the Ilaivaniyar community in the village of Panakudy. The defendants represent the Brahmins, Mudaliars and Pillars in that village. The plaintiffs pray for the following main reliefs:
(a) a declaration as against the defendants and their communities, Brahmins, Vellalas and Mudaliars of the right of the plaintiffs and of their castemen residing at Panakudy to go so far as the Sabapathy Sannadhi and as far as the front of the Pulliarai in the Amman Sannadhi in the said Panakudy Sri Ramalingaswami Temple and worship the Swamies and Amman and to receive prasatham, etc., after performing Abishekam, Archanai, Neivediam, etc., during the Mandagapadi occasions and on ordinary occasions;' and
(b) a permanent injunction restraining the defendants and their community from causing any obstruction to the plaintiffs and their castemen in their performing the above acts claiming the said right by virtue of such declaration.
2. The principal compartments of an ordinary Siva temple are (1) the Garbagriham where the principal fixed image is established and which is the holiest part of the temple; (2) the next outer hall called the Arthamantapam (Half-hall) and (3) a further outer hall which is called the Maha Mantapam or Big Hall. As the principal image usually faces east, these three rooms or halls lie usually east of one another. (In the Siva Temples the big outer Nanthi, the Flag staff and the Balipitam lie still further to the east). The two outer Mantapams (the Artha Mantapam and the Maha Mantapam) are, under a more elaborate classification subdivided into fractional portions. The Artha Mandapam is divided into (a) Antharala (b) Mukha Mantapa (c) Dwara Mantapa (d) Snapana Mantapa and (e) Vrisha Mantapa. The Maha Mantapam is subdivided into (a) Bahir Mantapam and (b) Nritha Mantapam. In the smaller temples (like the one in dispute), the only practical distinction is between the Garbhagriham and the portion east of 1ts gate up to the Flag staff so far as access of caste Hindus is concerned. The technical names 'Artha Mantapa ' and 'Maha Mantapa,' etc., do not at all appear in the evidence in the suit and though slight mention appears of a Thorana light and Thornakal, the learned District Judge is unable to come to any definite conclusion as to what is meant by these words. It appears from the evidence of the defence 9th witness, that ' all those who can enter the temple ' (that is, west of the Flag staff) ' can go as far as the Sabapathy Sannadhi,' that is, up to the gate of the Garbhagriham and that no sub-division is made of the space into Artha Mantapa, Maha Mantapa, Nritha Mandapa, etc, as regards the right of access. The plaintiff's prayers are substantially for a declaration that they are entitled to stand for purposes of worship in what I shall call the outer Mantapam (that is, the hall between the Flag Staff and the Garbhagriham) and for an injunction against their being ejected therefrom.
3. It is the case of both parties that so far as the (Garbhagriham) is concerned, it is only the Brahmins who belong to the temple priest sect that could stand inside it for the purpose of worship. Ordinary Brahmins, Pillais and Mudahars are entitled to worship from the outer Mantapam.
4. The Plaintiffs allege in their plaints that they belong to a caste which ' according to immemorial custom and according to Hindu Shastras ' (see 4th paragraph of the plaint) were entitled to worship standing in the outer Mantapam and that in November 1907, some Pillars and Mudaliars began to obstruct the members of the plaintiffs' community from standing in that Mantapam on the ground that the plaintiffs ' community have no right to go westward of the Dwajasthambam or the Flag staff. The lower appellate Court's conclusions might be shortly stated thus (using mostly, its own language).' The plaintiffs have adduced a considerable body of evidence proving that their caste people are entitled to go beyond the Flag-staff and into the Arthamantanam ' in the famous temples of Thiruchendur, Sankaranainar Kovil Courtallam and Srivaikuntam, also in Thenkasi Melaivasal Tinnevelly, Valliyoor, Kodayam and Tharuvoi. 'Some of the witnesses on plaintiffs' side are of particularly good credit and the majority are of good position and means of knowledge. Plaintiffs' 8th and 11th witnesses are the trustees of the Titu chendur temple, the 8th is a respectable Vellala, member of the District and Taluk Boards and the 11th is also a Taluk Board member. The plaintiffs' 9th witness is the Village Munsif of Sankaranainar Kovil and the Bhatter of the temple there and he navs a beriz of Rs. 750. The plaintiffs 15th witness is the mana-ger of the Tinnevelly temple. The plaintiffs' 16th witness is a Brahmin Bank Agent. The majority of the plaintiffs witnesses are of good position and knowledge. It is not likely that they would derogate from the dignity of the places which they hold sacred by admitting the right of entry of persons whose presence would otherwise constitute a pollution unless that right really existed'. ' The oral evidence on the plaintiffs' side is superior to that on the defendant's side. It certainly proves that in a number of temples of repute their caste is not excluded from the inner precincts of the temple. Hence there is nothing preposterous in the plaintiffs' claim. As their claim is shown to be conceded in a number of temples some of them in most important districts, and as there is no corresponding evidence on the defendants' side that it is refused in the temples of equal importance, there is some reason for viewing the plaintiffs' claim favourably in the present case.
(2) But though some presumption is raised from this strong evidence on the plaintiffs' side 'it is not enough to transfer the burden of proof' from the shoulders of plaintiffs, that is, the burden of proving that their caste men have got a right to go beyond the flag-staff in this particular temple. The evidence on the plaintiffs' side as to this particular temple is 'not so strong as to base an affirmative conclusion on it in plaintiffs' favour even when it is assisted by such slight probabilities as may arise from the evidence regarding other temples.
(3) ' It is unnecessary to consider the defendants' evidence in detail because the plaintiffs' evidence is insufficient to transfer the burden of proof'. It is immaterial that the defendants' witnesses who speak regarding the plaint temple are not entitled to much credit.
5. It is clear to me on a careful perusal of the District Judge's Judgment that in his opinion apart from the question of the burden of proof was originally on the defendants or if the burden of proof was sufficiently shifted on the defendants to prove the exclusion of the plaintiffs from the outer Mantapam, his conclusion would have been that the evidence on the defendants' side was wholly insufficient to establish such an exclusion. In short, the learned District Judge's judgment is entirely based upon the view that a Hindu belonging to a particular caste who wishes to go into the portions of the temple between the flagstaff and the Garbhagraham should establish by positive evidence that there is a custom in that temple which does not exclude him from any of those places.
6. It seems to me, with due respect, that this will in many cases be tantamount to throwing an impossible burden upon a caste Hindu who wishes to worship in a temple. There are so many castes and sub-castes in India and the word castes is so, very loosely used, the word not being confined to designate the four principal castes only. The Mudaliars, Pillais, Karakattars etc, though they are all supposed to belong to the Sudra caste, are usually considered and spoken of as separate ' castes, ' So also among the Brahmins themselves, there are hundreds of subdivisions throughout India. That a Hindu pilgrim belonging to one of the four Hindu main castes should be liable to be excluded at the will of a trustee or even worshippers then present at the temple from going beyond the flag-staff (up to which even persons belonging to other religions are allowed to go) and that he should be obliged to prove by positive evidence that there is no negative custom to exclude his caste-people seems to me to throw a distinctly unreasonable burden upon that. Hindu pilgrim or worshipper.
7. The origin of image worship in temples is stated in the authoritative Puranas to have been in the Threthayugam and subsequent ages. In the first or Krithayugam, God was worshipped by mankind (which consisted of only one caste,) as immanent in the heart of everything and worship consisted solely in the service to one's fellow creatures. As the spirit of universal brotherhood decayed in the second age and notions of inferiority and superiority among men were indulged in, the inferior man was asked to worship God's higher manifestations irP the superior man. Then, disputes naturally rose about relative superiority and inferiority and the sages considered it expedient to introduce image worship in order to prevent quarrels about superiorities and in order that all men (who had now become divided into four distinct castes) without unseemly squabbles about their relative excellences might worship God in common image (see the 4th Sloka in the 7th Skanda 14th chapter of Sreemath Bhaghavatam). Though image worship was thus recommended and laid open to all castes, it was clearly recognised as not the highest form of worship. (See succeeding slokas). The appropriate mode of worship for the Brahmins was held to be through the media of the Fire and the Sun and the highest form of worship for all castes was always recognized as that which prevailed in the first age. It is clear from the above that temples were intended for the worship of people belonging to all the four castes without exception. Even outcastes were not wholly left out of the benefits of temple worship, their mode of worship being however made subject to severe restrictions as they could not pass beyond the Dwajastambam (and sometimes not beyond the temple outer gate) and they could not have a sight of the images other than the procession images brought out at the times of festivals. The Agamas and the Thanthras which regulated the worship in the temples laid down rules as regards what caused pollution to a temple and as regards the ceremonies for removing pollution when caused. There are, it is well known, Thanthries in Malabar who are specialists in these matters of pollution. As the temple priests have not the special Saivite initiation of Dheeksha which entitled them to touch the innermost image and as the touch of the persons who have got no such initiation even though they be Brahmins was supposed to pollute the image, even Brahmins other than the temple priest Brahmins were in many temples not allowed to go into the Garbhagraham. In one of the Agamas, it issaid (as freely translated) thus:--' Saivite Brahmin priests are entitled to worship in the Antharala portion. Brahmins learned in the Vedas are entitled to worship in the Arthamantabha. Other Brahmins in the front Mantabha, Kings and Vysyas in the Dwaramantabha. Initiated Sudras in the Bahir Mantabha,'' and so on.
8. There is no Mantabham or hall for worship east of Dwajasthambam and it is plain from the Tanthras and Agamas that the Sudras and all castes above Sudras (including the Anuloma mixed progeny of the four castes) are entitled to stand and worship at appropriate spots west of the Dwajastamba. I am therefore reasonably clear that it lies upon a person who wishes to restrict a Sudra or one who has a higher caste status than a Sudra from proceeding beyond the Dwajastamba into the next hall, to establish by proof of a recognised usage of that particular temple that the individuals belonging to that community or class are not entitled to go beyond the Dwajastambam.
9. Speaking for myself, if I were not bound by authority, I should like to hold that a custom which prohibits one who belongs to a community which is not lower than a Sudra caste from going beyond the Dwajastamba is an unreasonable custom and ought not to be recognised. But as even such unreasonable customs, provided they are not grossly immoral have been held to override the law and Shastras if fully established by evidence, I think I am bound to follow such rulings.
10. As was said in the Judgment of the Court of First Instance in the Kamudi case Satikaralinga Nadan v. Rajeswara Dorai I.L.R. (1908) M. 236. 'A Court of law cannot reject a custom because it is not in accordance with the principles of equity or individual notions of right and wrong. Courts of law have recognised and enforced customs of this character although they may be repugnant to generally received notions of what is just and proper. It is not for this Court to examine whether the doctrines or usages obtaining in a particular temple are defensible from a logical or equitable standpoint in the light of modern enlightenment and civilisation, but to ascertain correctly, so. far as the materials placed at its disposal permit, what the custom and usage is as observed and practiced by the community for whose use and benefit the temple which is the subject of the litigation is dedicated and to be guided by them.
11. There are certain castes whose touch causes pollution not only to Brahmins but also to Sudras. They are usually spoken of as Yeenjathiyars. Of course even among Sudras, those who consider themselves more respectable will try to avoid the touch of the less respectable classes though there is no ceremonial pollution caused by such touch. For instance D.W.I, says in this case I am a Sudra, Caste, Vellala. I do not touch the lower class of Vellalas.' This is not because their touch causes any religious pollution to the higher class but simply out of the exaggeration and aberration of caste sentiments, the exaggeration being due to ' class ' sentiment having come in recent times to reinforce caste sentiment. So D.W.I. says ' I will not touch a Maravar or Edayan' though he admits that Maravars, Edayans, Asaries and Kammalas, Pillais, Mudaliars and Pillais of inferior caste, all stand in the next compartment to the Brahmin's compartment mixed up together. See page 21, lines 20 and 21 of the Printed Book. D.W. 14 adds ' Koravars, Reddis and Naiyakas are entitled to enter the temple ' which means entering the outer hall. The plaintiffs community, though of the Sudra caste, was a rather poor and uninfluental community till a few years ago while the Pillais and Mudaliars have been influential classes all along.
12. Now, coming to the caste status of the plaintiffs who are Ilaivaniers, it is first to be remarked that the Tamil word 'Vaniyan ' is derived from the Sanskrit 'Vanija. ' Vanija (Baniya in the Northern Vernacular) merely means a Vysia who has trade as his occupation. The term ' Vaniya ' in Tamil when used by itself has come to mean a trader in oils. A trader in oil especially when he crushes seeds to obtain the oil is considered to follow a sinful occupation. Vaniyans who press oil are also called Sekkans, sekku being the oil pressing machine. In the Census Report of 1901 Mr. Francis says at page 182 that for some obscure reason Manu classed oil-pressing as a base occupation. ' The reason is, however, clear enough. In chapter 4, sloka 85, Manu says that an oil-press (which destroys the lives of innumerable vegetable seeds is not better than a slaughterhouse and that is the reason why the caste of the Sekkan or Thilavaniyan (shortly called Vaniyan) is considered an impure caste. But the plaintiffs in this case are Ilaivaniyans, that is, those who trade, in leaves, especially betel leaves and one ought not to be misled by the use of the word ' Vaniyan' as part of their caste-designation.
13. In Thurston's Castesand Tribes, Vol vi, page 360, Ilaivaniyars are described under the more high-sounding title of Senai Kudayan, They are also called Kodikkal Pillaimars or Pillaimars, who cultivate the betal vine. In the Madras Census Report of 1901 at page 177 it is remarked ' In 1891 following the Tanjore District Manual the were wrongly classed with Vaniyars, oil-mongers, but they are superior to these in social position and are even said to rank above Nattu-Kottaichetties'. This latter observation may not be accurate, but there can be no doubt that Ilaivaniyars have no connection whatever with the oilmongers or Vaniyars. Traders must, according to the true spirit of the Hindu Sastras be classed as Vaisyas. Owing however to the repression of Kshatriyas and Vysias by the Brahmins in the medeiaval ages, most of the Kshatriyas and Vysias have descended to the position of Sudras. But there can be no doubt that Ilaivaniyars are at least Sudras and do not belong to the communities which are lower than Sudras who are called Yeenajathiyars (like Pallars, Chucklers and Pariahs).
14. The castes below the Sudra are most of the Prathilomas and those who are classed as Anthiyajhas and out-castes or Pathithas. The prima facie right of the Brahmins to enter the temple was negatived in the case in Venkatachalapthi v. Subbarayadu I.L.R. (1890) M. 293 because the plaintiff, there, it was proved by the defence evidence, had, in the eyes of the community frequenting to temples became Pathitha and outcaste by marrying a widow. Though there are 28 Sivagamas, the Kamitagama is the Agama most quoted in these matters and the substance of the other Agamas has been digested in 18 paddhathies, of which Sakala-gamasara, Varunapaddhathi and Nirvachanapaddhathi are those most frequently referred to. In the Nirvachanapaddhathi it is said that Sivadwijas should worship in the Garbhagriham, Brahmins from the ante chamber or Sabah Mantabam, Kshatriyas, Vysias and Sudras from the Mahamantabham, the dancer and the musician from the Nrithamantabham east of the Mahamantabham and that castes yet lower in scale should content themselves with the sight of the Gopuram. Taking it then as indisputable that the plaintiffs belong to the Sudra caste, they are prima facie entitled to worship from the Mahamantabham, one of the halls west of the bull near the Dwajastamba and east of the Garbhagraham.
15. In Venkatachalapathi v. Subbarayadu I.L.R. (1890) M. 293 the learned Judges quote without dissent the following observations of the Court of the First instance in that case; ' Temple, of course, is intended for all castes, but there are restrictions of entry. Pariahs cannot go into the court of the temple even. Sudras and Baniyas can go into the hall of the temple. Brahmins can go into the holy of the holies.' The learned District Judge in the present case admits that in Venkatachalapathi v. Subbarayadu I.L.R. (1890) M. 293 the burden of proof that a Brahmin was excluded from worshipping in the inner precincts of the temple was imposed on the defendants who were for exclusion, because the plaintiff who was a Brahmin would ordinarily be entitled to access into inner precincts of the temple. On the same reasoning, if a Sudra would ordinarily be entitled to access into the hall beyond the Dwajastamba, it is for those who wish to exclude a. particular community which is not below the Sudra community from such access to establish the custom to exclude that particular community though they form a sub-division of the Sudras. In the well-known Kamudi case Sankaralinganadan v. Rajeswara Dorai I.L.R. (1908) M. 236 the Shanars were excluded from access into the temple because overwhelming evidence proving that they belong to a caste whose touch was pollution (to Sudra), whose occupation of toddy drawing was of a sinful kind and who were therefore lower than Sudras in status was adduced by those who wanted to exclude them and who unhesitatingly took upon themselves the burden of proving such right of exclusion. No doubt the person who wished to exclude was the plaintiff in that case while here the plaintiffs sue for a declaration that they are entitled to be included; but I. think that it would be a wholly unsatisfactory state of things that the status and rights of a community to take part in public temple worship should depend on whether a member of that community appears as a plaintiff or as a defendant. The contention of the defendants in this case is based not on the allegation that the plaintiffs belong to a caste which is below the sudra caste or whose occupation is of a sinful character, but only on the ground that whatever may be the practice in other temples, in this particular temple the usage is to exclude the plaintiffs from the temple proper. Such a plea not being proved and the plaintiffs as Sudras being prima facie entitled to worship from the Mahamantabham their suit ought to have been decreed.
16. In Venkatachallabati v. Subbarayadu I.L.R. (1890) M. 297 Mr. Justice Muthusami Aiyar says that 'the right claimed by the plaintiff to enter into certain portions of the temple was a right which he was at liberty to assert as a citizen and a Brahmin. 'This shows that each of the principal castes can rely upon its prima facie right to enter a temple. In the famous Ambalapuzha temple case Dewan of Travancore v. Vakji Jeraji 14 TL.R. 56 the late Mr. M. K. Ramachandra Rao of the Travancore High Court (then the District Judge of Alleppy) a very orthodox and learned Brahmin Judge, decided that a Bhatia merchant was entitled to worship from the hall of that famous temple (though he was a foreigner to Malabar) because he belonged to one of the higher castes. I am clearly of opinion that it is unreasonable to call upon a person belonging to any of the thousands of such castes existing in India to prove affirmatively that his sub-caste has by prescription acquired a right to get into a particular temple among the tens of thousands of Hindu Temples dotted over India and if he could not do so, to shut him out of worship in that temple. It seems to me that provided he proves that he has the status of one of the main castes (or it may be, an intermediate Anuloma status between two of the main castes), it would be for those who wish to exclude him from the usual position in the temple assigned to a man of his caste status by the Agamas to prove that by the special custom of that temple, even a person of that caste status is excluded.
17. Reversing therefore the judgments of the lower Courts I would give a judgment in favour of the plaintiff granting the reliefs claimed in the prayers (a) and (b) of the plaint subject to a declaration that Brahmins Pillais and Mudaliars are entitled to take precedence over the plaintiffs by standing in front of persons belonging to the plaintiffs' caste in the covered portions of the temple between Dwajastambham and the Garbhagraham where it is intended that the worshippers shall stand and that the defendants 1, 2, and 4 to 9 (the defendants 1 and 2 in their individual capacity and not as trustees) shall be personally liable for the plaintiff's costs throughout and the defendants shall bear their own costs.
18. Reliefs now granted to the plaintiffs shall not operate so as to derogate from the exercise by Brahmins, Pillais and Mudaliars of the right of precedence.
19. The question, involved in this appeal would primarily be dependent upon the terms of the original dedication of the temple. As there is no written trust-deed or its equivalent the Court is left to deduce from the materials before it what the terms of the dedication must have been.
20. Under these circumstances it seems to me that the proper course is to presume that the dedication was a reflex of the general religious notions prevailing amongst members of the community for whose benefit the temple was dedicated. It is reasonable to assume that the dedication would follow the current of prevailing religious views, if something at variance, with the general notions was intended, those different intentions would in the ordinary course be clearly expressed.
21. The religious books cited by my learned brother are entirely in favour of the plaintiffs. This part of my learned brother's judgment I desire respectfully to adopt and follow. The learned District Judge should therefore have addressed himself to the question whether the defendants had proved that they had by the original dedication or by what took the place of dedication been given a right to exclude the plaintiffs from the portions of the temple which the plaintiffs claim to enter. The course he actually adopted was to start on the basis that the burden of proving that the plaintiffs had a right to enter the temple was initially on the plaintiffs. This may be conceded as part of the general rule that the plaintiffs must prove their case, but the failure to notice the considerations mentioned by my learned brother is very material. There was considerable evidence on the plaintiff's part to prove the existence of what is referred by the District Judge as a 'general rule permitting the access of their caste to temples'. Evidence to this effect was given with reference to the Tiruchendur, Tinnevelly and seven or eight other temples. It is carefully, I may say elaborately considered by the District Judge. His conclusion is that the plaintiffs' evidence is 'superior' to that of the defendants on this question. Then the District Judge deals with what he considers to be the second part of the plaintiffs' case. He says ' Plaintiffs' direct evidence as to their right to enter the templets given by 13 persons besides the first plaintiff; nine belonging to Panagudi and the others more or less connected with the village'. His view of the plaintiffs' evidence on this part of their case is not equally in their favour. In his opinion it is '' insufficient to transfer the burden of proof '. He considers it, therefore unnecessary to deal with the evidence of the defendants in detail. He does say however that ' the defendants' witnesses who speak regarding the plaint temple are of much the same quality as regards credit and independence' and he refers to the admissions of the defendants that the inferior Vellalars can enter the temple, that the Ilaivaniyans are not excluded from communion with other castes; in various social connections, that (according to the 13th witness for the defendants) sons of Dasis can enter the temple and that the 3rd defendant in his written statement refers to the plain-: tiffs' right to go as far as the Thornakkal. His final conclusion is thus expressed: ' There is nothing in all that which justifies acceptance of the plaintiffs' witnesses' evidence in spite of their lack of credit and independence.''
22. I feel the difficulty of appearing to interfere with a finding on fact in Second Appeal--a finding arrived at after so careful a consideration of the evidence. But the precision with which the learned Judge has intimated his views as regard the evidence of each of the parties on each point enables us to give effect to his views of the evidence on the basis of the more accurate understanding of the law which my learned brother's research has made possible.
23. Taking the evidence as appreciated by the learned District Judge, the facts found by him may be stated to be that the general practice in regard to the 9 or 10 temples above referred to is in favour of the plaintiffs, that with reference to the particular temple now in question the witnesses of both sides 'fail from a lack of credit and independence '; that it is not proved by the plaintiffs that they have been allowed in the past to enter this temple as a matter of right; nor is it proved by the defendants that the privilege of excluding the plaintiffs from entering the temple has been asserted by the defendants and admitted in the past by the plaintiffs.
24. The result is not doubtful. The defendants have fallen far short of establishing to the satisfaction of the District Judge that usage long prevailing, uniform and clear leads to the conclusion that the religious trusts declared in connection with this temple gave to the defendants and their predecessors in title the right to exclude the plaintiffs from it, notwithstanding that the general religion? sentiment would be opposed to such exclusion.
25. On the District Judge's view of the evidence therefore the plaintiffs should have been given a decree in terms of prayers (a) and (b) of the plaint subject to the declaration of the rights of the Brahmins, Pillays and Mudaliars to which my learned brother refers in his judgment. I agree therefore in the order proposed by my learned brother.