1. This litigation is in connection with a group of temples situated in the neighbourhood of Tirupati in the North Arcot District, and generally known as the Tirumalai-Tirupati Devasthanams. They are 34 in number, as shewn in plaint Schedule A; but the most important ones are the four mentioned below, which are also the only ones which have any income:
No. 1. Sri Venkateswaraswami on Tiranialai Hill.
2. Sri Govindarajaswami at Tirupati.
5. Kothandaramaswamy at Tirupati.
7. Padmavatiswamy at Tiruchanur.
2. The other temples are all dependent on one of these four and are maintained out of funds allotted from the revenues thereof.
3. The defendant is the Mahant of the Hathiramji Mutt at Tirupati, and, as such, holds the office of Vicharanakartha (Trustee) of all these temples under a Sannad granted by Government to the then Mahaut in 1843 (vide Exhibit XXXIII).
4. The plaintiff is the head of another Mutt, known as the Pedda Jiyangar's Mutt, he himself being known as the Pedda Jiyangar. This office descends by nomination, each Pedda (big) Jiyangar nominating a disciple as Chinna (small) Jiyangar. The Chinna Jiyangar acts as a sort of alter ego of the Pedda Jiyangar during the latter's life-time and succeeds him at his death. Whether this amounts to an unfettered right of appointment is disputed, but it is not denied that as far back as we have any record (certainly for more than a century) the office of Pedda Jiyangar has invariably descended in this manner.
5. On behalf of the plaintiff it is claimed that from time immemorial the Pedda Jiyangar has been the Dharmakartha of all these 34 temples; and as such entitled to the rights, honors, and emoluments set forth in plaint Schedules B and C. The suit is brought for a declaration to the above effect, and for various incidental reliefs which it is unnecessary to recapitulate here.
6. The defendant's contention is that the plaintiff is merely a hereditary trustee (Udiyam Mirasdar) of five of the plaint temples, and, as such, under the orders of himself (the defendant) as trustee. He denies that the plaintiff is the Dharmakartha of any of the temples; or entitled, as of right, to the various items of Schedules B and C. He alleges that such rights, privileges and emoluments as the plaintiff is entitled to, he enjoys in recognition of the religious duties which, as Pedda Jiyaiigar, he is bound to perform in certain of the temples.
7. Before proceeding to discuss the points in dispute, it is well to explain the peculiar circumstances of these temples.
8. In the first place they are all of them destitute of any endowments in land or money. Such Inam lands as are attached to them are Service Inams held by various temple functionaries in remuneration for their services, and do not contribute to general temple revenues. On the other hand, a very large income (at least three lakhs annually) is derived from the offerings of devotees and pilgrims. These are collected in the most business-like manner. Every service of the deity performed by, or on behalf of, a devotee has to be paid for on a fixed scale. For instance, if a pilgrim wishes a necklace to be used for the decoration of the idol, this will only be allowed on condition of his depositing also the full value of the necklace in cash for credit to the general revenue of the temples. If a pilgrim wishes camphor to be burnt before the shrine a fixed fee has first to be paid by him. The same principle obtains throughout.
9. The most striking feature has yet to be indicated. Up to 1843, when the defendant's predecessor was appointed trustee of the temples, all the surplus revenues of the temples, after defraying the cost of the temple service, were appropriated by the sovereign power. This practice the British Government inherited from its Mahomedau and Hindu predecessors, and it has prevailed from time immemorial.
10. The surplus revenues thus appropriated amounted at the beginning of the last century to something like 2 lakhs of rupee's annually.
11. As a natural consequence, we find record of the most minute superintendence of temple affairs exercised by Government, through the Collector and Tahsildar, up to the time when it severed its connection with the institution by the Sannad of 1843. The temples appear to have been treated exactly like a Government Department, every care being taken to cut down unnecessary expense, increase the income, and prevent the possibility of leakage or embezzlement.
12. One instance of this which bulks largely in the present case is a system of double accounts. Without going into details it may be stated that from the time of assumption of management by the British Government right up to the present day, independent accounts of receipts and disbursements connected with some, if not all, of the temples have been maintained by the Pedda Jiyangar's subordinates on the one hand, and by what we may term the ordinary secular establishment of the temple on the other. There can, we think, be no doubt that the maintenance of this extra set of accounts by the Jiyangar's men was intended as a check on the low-paid subordinates who, headed by a functionary known as the 'Parpatyadar', conducted the temple business under the Tahsildar during the period of Government management; while it has since proved of great value in checking and detecting acts of misappropriation on the part of more than one of the defendant's predecessors.
13. With these preliminary remarks, we proceed to deal with the question at issue in the case. The very voluminous evidence appears to have been most carefully considered by the learned District Judge, who, in his judgment, discusses it in detail not only in connection with each issue, hut with special reference to each of the numerous items of plaint Schedule Band C. We may say at once that in our opinion the conclusions at which he has arrived are generally sound, though requiring modification in certain particulars. His judgment and decree entirely rejects the plaintiff's claim to the Dharmakarthaship of any of the temples, and while recognising his claim in a more or less modified form to some of the rights, honors and emoluments sued for, states (issue No. 3) that he is merely a hereditary servant (Paricharaka) of the temple, and that it is merely as such and not as Dharmakarta that he is entitled to such rights, honors and emoluments as are allowed. Against this decree, the plaintiff appeals.
14. The question of the plaintiff's status and with reference to the temples, apart from the consideration of particular rights, honors and emoluments incidental thereto, may be conveniently considered first. It forms the chief subject-matter of issues Nos. 2, 3 and 4. Issue No. 1 relates to the truth of the plaintiff's version of the history of the temples and their connections with his Mutt since the 10th century. Its decision is not necessary to the disposal of the case : and the judge's refusal to record a finding in the absence of more definite and reliable evidence than is forthcoming appears to be justified. The question of whether the plaintiff is a Dharmakartha of all or any of the temples or 'only a Paricharaka or hereditary servant' has been most strenuously contested, though, in our opinion, the contest has been largely due to the use of the same term in different meanings. The term 'Dharmakarta' as 'ordinarily understood in the legal phraseology of religious institutions' (to quote the learned District Judge) practically means trustee. There can be no doubt that in this sense the plaintiff is not the Dharmakarta of any one of the suit temples The office of trustee is in fact held by the defendant under the title of Vicharanakarta and a reference to the sauuad (Exhibit III), and to the contemporaneous Government order dated the 21st April 1843, (Exhibit c c c L I) and the Collector's report on which it was based show that the idea of appointing the Pedda Jiyangar as joint trustee was considered, and deliberately rejected. The plaint is, no doubt, ambiguous as regards the meaning to be attached to the term 'Dharmakartha,' and a written statement filed by the plaintiff in the District Court in the course of the hearing has little or no effect involving ambiguity. The District Judge came to the conclusion that it must be understood in the sense in which it is usually understood (i.e., as trustee) and in that view has entirely rejected the plaintiff's claim to the Dharmakartaship, The learned Vakil for the. appellant has, however, in arguing the case before us, been most careful to make it clear that he claims for his client no trusteeship with defendant, or any trusteeship at all. His claim is simply that his client is entitled to the designation of Dharrhakartha (the phrase being used in a special and limited sense); and that with the designation, go certain rights and duties of a kind usually associated with the office of Dharmakartha in its conventional acceptation. That the phrase, 'Dharmakartha' is susceptible of this interpretation is clearly laid down in the judgment of this Court reported in Sri Sadagopa Ramanuja Jiyangarlu v. Sri Mahant Ram Kishore Dossjee I.L.R. (1898) M. 189. That was a case between the very same parties in which the present defendant sued in the Court of the District Munsif for an injunction restraining the present plaintiff from using a seal bearing the inscription 'Dharmakarta' of the Tirumalai, Tirupati vagiara Devasthanams and the question whether the plaintiff was entitled to be called Dharmakartha of almost all the present suit temples was enquired into and decided. It was held that the plaintiff was the Dharmakarta in a limited and special sense of five temples (Nos. 1, 2, 3, 4, 18 of plaint schedule A.) To quote the judgment of this court : 'His rights and duties as such are riot so wide as those which often appertain to the office of Dharmakartha in other temples and which appertain to the defendant himself as Dharmakarta of the temple of Tiruchanur. His rights and duties are of a limited character, and he is, in many respects, subordinate to the plaintiff, but by immemorial usage he has the title of Dharmakarta of Tirumalai and Tirupati Devasthanams. By immemorial custom he has also the right, as Dharmakarta, to use a seal in making remittances and doing certain other acts as Dharmakartha of those temples.' The plaintiff's light to the Dharmakartaship of the other temples, even in this limited sense, was found again him. The respondents Vakil urges that, the decision in that case operates as res judicata in the present suit as regards the contested Dharmakarthaship : a question which is embodied in Issue No. 4, and which the District Judge has decided in his favor. The appellant's Vakil disputes this pointing out, inter alia, that the present suit is not cognizable by a District Munsif, and arguing that, on this account alone, the Munsif's decision cannot operate as res judicata vide the Privy Council decisions reported in Gokul Mantar v. Pudmanund Singh I.L.R. (1904) B. 707. The learned Advocate-General on behalf of the respondent has argued with considerable force that the principles enunciated in the judgment in that case, (which are of the nature of an obiter dictum) are not applicable to cases in which an unsuccessful litigant has joined the cause of action sued on in the first suit with other causes of action against the same defendant in a subsequent suit in order to agitate the same question again and obtain a new adjudication. Whether this is so or not and whatever doubts we may feel on the point, it can hardly be said that the present suit falls within the category referred to by the Advocate-General. We should be diposed to hold that the Munsif's decree did not operate as res- judicata in the present case : bat the question is really of only academic interest so far as this case is concerned. The evidence now adduced on the question of Dharmakarthaship is substantially the same as that put forward in the suit in the Munsif's Court; and we have no hesitation in arriving at the same conclusion as was then reached by the District Munsif,' District judge, and this Court in succession. The evidence is sufficient to establish the plaintiff's right to the Dharmakarthaship (in the limited sense above indicated) of the two principal temples of Tirumalai and Tirupati (Nos. 1 and 2) and of the three minor temples (No. 3, 4 and 18); this is the finding1 of the District Judge (vide paragraph 13 of his judgment) and it is not contested in this Court by the learned Advocate-General who appears for the respondent. As regards the other temples, we agree with the District Judge in rejecting the plaintiff's claim even to a limited Dharmakarthaship. The question has been argued by the appellant's Vakil only with reference to the Ramasami temple (No. 5), the Trichanur temple (No. 6) and Vedanta Desikar temple (No. 14).
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[Their Lordships after discussing the evidence regarding plaintiff's rights to Dhartnakartaship in respect of other temples proceeded as follows : - ED.]
17. We therefore consider that the plaintiff is entitled to be styled Dharmakarta of the temples shown as Nos. 1 to 4 and 18 in the plaint schedule A and of no others : the term Dharmakarta being understood in a limited and special sense as indicated in Sri Sadagopa Ramanuja Jiyangarlu v. Sri Mahant Ramakrishna Dossjee I.L.R. (1898) M. 189 and not as entailing the full rights and duties of 9 trustee. He must be given a declaration to this effect and in view of the learned District Judge's remarks in paragraph 13 above referred to, it is not clear why so much relief was refused him. The refusal was probably due to the interpretation placed by the District Judge on the term 'Dharmakarta' as a ready explained - an interpretation which was not altogether unnatural on the pleadings, but which in the light of the explanation furnished by Mr. Sundara Aiyar need no longer be maintained. The exact nature of the rights, honors, and emoluments claimable by the plaintiff in connection with these five temples, as also those of which he is not Dharmakarta, must be dealt with later.
18. As regards the remaining twenty nine temples, although the plaintiff enjoys a position of more or less importance, nothing has been proved, which would be incompatible with his being styled a Paricharaka.
19. Before proceeding to a detailed consideration of the various items of rights, honors and emoluments in dispute, issues NOS. 5 and 13 may be briefly dealt with. Issue No. 5 relates to the plaintiff's right to use a seal bearing the inscription 'Dharmakarta of the Tirumalai-Tirupati and other (Vagaira) devasthanams'. This right was found against him in the litigation of 1894, which was concluded by the Judgment of this Court already referred to Sri Sadagopa Ramanuja Jiyangarlu v. Sri Mahantu Ramakishore Dossjee I.L.R. (1898) M. 189. Whether the Munsif's decision operates as res judicata or not (a point on which, as already remarked, we express no final opinion), we have no doubt whatever, on the evidence now before us, the was perfectly correct. The use by the plaintiff of a seal bearing such an inscription would be calculated to convey a most misleading impression as to his rights over those twenty-nine of the suit temples of which he has been found not to be the Dharmakarta, and the defendant is entitled to object to it.
20. Issue No. 13 raises the question of the effect of the rajinama decree of the North Arcot District Court in O.S. No. 9 of 1868 on its file. This decree is framed in most ambiguous language; but after careful consideration we are not prepared to differ from the construction placed upon it by the learned District Judge. The decree is so indefinite that it may fairly be said to determine nothing at all, and cannot operate as res judicata on any of the questions raised in the present suit.
21. Of the various items above referred to, three have been deemed of sufficient importance to form the subject of distinct issues, viz.-
(a) The tight of keeping the Latchana keys (Issues No. 9 and 10.)
(b) The action of the Mahant in reducing the monthly sum paid to the plaintiff and withholding further payment pending adjustment of the difference (Issue No. 14.)
(c) The defendant's right to fine the plaintiff and the propriety of his action in doing so in a specified instance (Issue No. 15.)
22. The others find place in the Plaint Schedules B and C and the question whether the plaintiff is entitled to each has been considered in great detail by the District Judge under Issue No. 2.
23. A few preliminary remarks may not be out of place. There appears to have been a great deal of discussion in the District Court, as there was before us, as to whether the performance of certain acts by the plaintiff was a duty cast upon him in virtue of his position, (whether as Paricharaka or Dharmakarta), or a right enjoyed by him by reason of the said position. The District Judge in many instances, while holding that the practice has been for the plaintiff to perform a certain act, has held that its performance was only a duty on the plaintiff's part, which the defendant might insist upon, and in no sense a right in recognition of which he (the plaintiff) could obtain a legal declaration. The plaintiff's claim for all such items has been disallowed.
24. In our opinion this distinction between rights and duties is, in most cases, a distinction without a difference. There is such a thing as right to perform a duty : and where a duty is cast upon a man in virtue of his connection with an institution, or an abstract personality (as distinguished from a specific individual who might absolve him from performance),and where it is primarily for the benefit of such an institution or personality, he may reasonably claim the aid of law to prevent his being obstructed in the performance of the same. On the other fuel, in conceding such a right, it must be borne in mind that it is granted in the interests of the institution or abstract personality and not of the individual claiming it : and that where the right has ceased to be beneficial to the former, it should be refused. These are the general principles to be borne in mind in dealing with the numerous claims set up by the plaintiff regarding the performance of specific acts of a more or less secular nature. His claims to enjoy for his own benefit certain honors and emoluments in virtue of his office and to perform certain religious functions stand of course upon a different footing.
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[Their Lordships after dealing with certain questions of fact proceeded as follows : - ED.]
25. The next question for consideration is that raised in issue No. 16, regarding the Mahant's power to fine the Pedda Jiyangar. In 1896, defendant fined the plaintiff five Rupees for failure to remove from office an Ekangi who was suspected of theft; and this is the solitary incident which has brought the matter to notice. The District Judge has found that there was no justifiable ground for imposing the fine in question : a conclusion in which we have no hesitation in concurring, and against which no arguments have been adduced before us. On the general question, however, he finds (x) that Government had the power of fining the Pedda Jiyangar during the period of Government management; (2) that the same power was transferred to the Mahant, when he was appointed Vichavanakartha, and (3) that the relation of the parties being analogous to that between master and servant, the defendant cannot question the propriety of the fine in a court of law.
26. It may be stated at once that the learned Advocate General, who appears for the respondent, does not dispute the power of the appellant to call in question in a civil court the propriety of the fine, and if successful to obtain a refund : while he is content to base the power to fine on the right of a master to deduct from the wages of a servant an amount proportionate to the damage, moral and material, caused to himself by the servant's neglect or faulty performance of his duty. Thus viewed, the power to fine is contingent on the receipt of wages by the person fined : a condition which appears to be wanting in the present case. It is not contended that the income derived from the Inam lands attached to the plaintiff's office constitutes wages, and we have already found that the cash allowance drawn by the plaintiff was not his own salary, but a special allowance to enable him to entertain a staff of clerks and other subordinates sufficient for the performance of his secular duties.
27. We certainly consider that the right to fine a subordinate should be strictly made out and is by no means to be presumed to attach to the superior office. In the present case, we find no sufficient evidence to support it. It may be that Government, during the period of its direct management, possessed the right, as they certainly had the power, to fine. As pointed out in the introductory remarks, the powers exercised by Government in the first four decades of the last century were practically unlimited. Looking to the manner in which the temples and their income were managed and applied, it is difficult to say that Government stood in the position of a trustee at all; if it did, the powers possessed and exercised by it were certainly not limited to those; ordinarily possessed by a trustee but also included the rights inherent to the sovereign power. Whether the Sannad (Exhibit XXXIII) be regarded as establishing a new trust altogether or as transferring to the Mahant such portion of the powers of Government as were exercised in virtue of a pre-existing trusteeship, it is clear that the powers of the Mahant were by no means co-extensive with those previously held by Government and any argument based on the assumption that they were, is fallacious.
28. As a matter of fact the earlier records make it obvious that during the whole period of Government management the Jiyangar was regarded and treated as a person of considerable sanctity and consequence, though occasionally the zeal, or brusqueness of an individual Collector led to sharp admonition.. Exhibit II is a code of departmental instructions drawn up in 1821 for the management of the Tirupati Devasthanam and known as Bruce's Code. It is of particular value in as much as it is admitted to have been based on previous custom. This code certainly recognises the liability of the Pedda Jiyangar to be fined for misconduct; but the power to fine him is carefully reserved to the Governor-in-Council on report from the Collector through the Board of Revenue : and the Pedda Jiyangar is especially exempted from the liability to punishment at the hands of the Collector, which attached to every other office-holder of the temple. During the whole period of Government management there appears to have been only a single instance of the Pedda Jiyangar being fined:
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[After further discussing the evidence on the point, the learned Judges proceeded as follows :- ED.]
29. The learned District judge is of opinion that the unrestricted power to fine the Jiyangar, as well as other temple officials, is absolutely necessary to the due administration of the trust. We cannot agree in this view. In the case of a highly placed and revered official like the plaintiff, the, due performance of duty is sufficiently secured not by the power to inflict petty fines, but by removal from office in the case of persistent misconduct.
30. In our opinion Issue No, 14 should have been decided in the plaintiff's favour arid the plaintiff must be given the declaration sued for in this connection as well as a refund of the fine.
31. The remaining items of the plaintiff's claims are set forth! in Plaint Schedules B and C. The former contains 55 Items of 'Mirasi rights.' To 25 Items the plaintiff does not press his claim in this court; these are Nos. 9, 17, 18, 22 to 26, 29 to 32 and 34 to 36.
32. Dealing with the rest in order, there is a certain similarity as regards Items Nos. 1 to 8. In the case of each, the District Judge has found that the various acts referred to have been customarily performed by the plaintiff as alleged by him, but he has refused the declarations sued for on the ground that they are merely duties which he has to perform and not rights which he can enforce. The items must, therefore, be considered in the light of the general principles enunciated above. It may be noted that the admission of many of the claims, in literal pursuance of the schedules, would enable the Jiyangar to paralyse the administration of the temples at his will and pleasure.
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[After dealing with the several items their Lordships proceeded as follows : - ED.]
33. In our opinion the plaintiff is entitled to a declaration of his right to appoint the Chinna Jiyangar and the Ekangis, and to dismiss the Ekangis.
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[Again after dealing with the other items their Lordships concluded as follows : - ED.]
34. As regards costs the District Judge has given proportionate costs to both sides on the valuation of the portions of claim allowed and disallowed. It is open to us to follow the same course but looking to the peculiar nature of the disputes and the necessarily arbitrary manner in which many of the most important items must be valued, it seems to us that equity will be equally well served by our ordering each party to bear his own costs throughout, and we direct accordingly.
35. The memorandum of objection filed by the respondent is not pressed, and is dismissed with costs.