1. It will be well to consider first the memorandum of objections argued by the Advocate-General on behalf of the trustees. It is therein contended that the whole suit ought to have been dismissed on the ground that the Civil Court has no jurisdiction to determine the questions raised in it.
2. The plaint, however, showed a cause of action. It alleged that the defendants 'wrongfully obstructed the plaintiffs from their performing, as usual, the services that should be done by them and from receiving the emoluments and honours.' It is true that the trustees, for whom the Advocate-General appears, did, in a qualified way, admit in their written statement that most of the offices claimed by the plaintiffs were vested in them, but the archakas, the fifth and sixth defendants, denied this altogether and thus questions arose which required determination by the Civil Court in a proceeding to which the trustees were proper parties. It is clear that the suit was at any rate in part triable by the Civil Courts and that most of the declarations made by the District Munsif and the District Judge were required to protect the rights of the plaintiffs. The objection is principally to the declaration of the plaintiff's right to the position of first thirthamdurs,' a position which it is urged is not that of a holder of an office. It was, however, not denied in the argument before us that the position of first thirtham,' whatever it be, is held hereditarily by the plaintiffs' family; and that being so, there is no sufficient reason to suppose that this declaration can do any harm to the trustees. It is further contended in the memorandum of objections that the District Munsif, whose decree the District Judge has left undisturbed in this particular, was wrong in awarding to the plaintiffs the emoluments withheld from them for some time. The argument is that as the District Munsif finds that one of the plaintiffs was guilty of misconduct, the plaintiffs must show that this is not bo, or cannot recover the emoluments. There are obvious answers to this contention. There is, in the first place, no reason shown why all the plaintiffs should be made to suffer for the misconduct of some only of their number. It is for the defendants to show why that should be, and they have not shown it and again it is not for the Court in the first instance, at any rate, to assess the penalty to be attached to a particular transgression. The punishment is according to the District Munsif to be awarded by the trustees, and this finding was not, we think, contested by the Advocate-General. It is also found that the trustees did not assess the penalty but that in fact one alone of them did so, and that he had no power to do so; this finding again was hardly disputed; the District Judge says nothing on this point, and it is not perhaps going too far to infer that the question was not pressed by the trustees before him, though it is raised in their appeal to him. However that be, it is not possible to hold that the District Munsif was wrong in declining to accept as a proper punishment for the misconduct of the fourth plaintiff the penalty illegally imposed by the second defendant.
3. The memorandum of objections, therefore, fails except as to the mandatory injunction against the trustees which perhaps was left in the decree by inadvertence. In paragraph 3 of his judgment the District Judge seems to overlook it, but however that be, it is not contended before us that it ought to remain in the decree it must be struck out.
4. The second appeal by the plaintiffs against the trustees, viz., Second Appeal No. 361 of 1905, can best be decided along with Second Appeal No. 360 of 1905, their second appeal against the archakas, fifth and sixth defendants.
5. Second Appeals Nos. 360 and 361 op 1905.
6. The District Judge has modified the decree of the District Munsif by expunging a mandatory injunction against the archakas, and that part of the decree which sets out, or refers in detail to, the honours to which the plaintiffs are entitled; and he has also reversed the decree for damages for loss of dignity.
7. The principal question is whether the Civil Courts can by their decree restrain the defendants from refusing to the plaintiffs some of the honours to which the District Munsif has found them entitled. The District Judge has correctly laid down the law when he says 'a suit will lie for honours, if they are claimed as attached inseparably to an office as part of its emoluments, and not simply accorded to its holder as marks of respect, which might be extended to any other person to whom the same degree of respect is due.'
8. The District Judge seems to take it as a fact conceded or a fact beyond question that the first 'thirtham' is an office: he states that the defendants had before him formally withdrawn from their original position that the plaintiffs are not the 'first thirthams' or entitled to their emoluments and dignities. He may have been inaccurate in saying that the appeal petition contained no ground directed against this part of the lower Court's adverse decision (paragraph 6 of his judgment), but there is no reason to suppose that he was wrong in saying that the defendants did not attempt to argue the question. They have not done so here; the trustees has not denied the plaintiffs' position as ' first thirthams,' and Mr. Rama-chandra Aiyar for the archakas seemed to attribute the allegations in the written statement of his clients to a desire to make the best of the case by denying all the plaintiffs' averments, true or false. He did not seek to distrub the finding on this point.
9. But it has been strongly urged here that the 'first thirtham'' is not an office but represents only honours accorded to the plaintiffs' family as persons of consideration and not because they hold a hereditary office in the temple. There is no discussion of this question by the District Judge; he speaks in paragraph 7 of 'an office such as that of first thirtham' and seems, as we have said, to take it for granted that there is such an office and that the appropriate honours are attached to it by way of emoluments. This seems to follow from the fact that he has made a declaration in the decree.
10. The District Munsif's observations on the question are not perhaps altogether clear. He holds (at page 32 of the printed pleadings) that 'the sthalam right and thirtham rights appertain to certain offices in the temple and that those that employ them are office-holders in the temple.... It (the evidence) also shows that by virtue of such offices the holders thereof are entitled to the Manthrapushpam, Vedaparayanam and Adyapakam rights in the temple,' and further down, 'there is sufficient evidence to show that the office-holders have to perform certain duties.'
11. He then proceeds to find that there are four offices : (1) stalam and first thirtham, (2) Manthrapushpam, (3) Vedaparayanam, and (4) Adyapakam, and deals with them seriatim.
12. In discussing No. (1) he styles it 'the sthalam right which carries with it the privilege of the first thirtham' and in discussing it he does not suggest that any duty is attached to the 'privilege of the first thirtham' as such.
13. He next discusses the 'Manthrapushpam duty,' and this he assigns to the thirthagar and finds that 'the thirthogars as such have to recite some Vedas, Mantras, Puranas, Ithihas as, Prabandams and Mangalasutrams at the Manthrapushpam time' (page 38 of the printed pleadings). In discussing the Vedaparayanam he does not mention the thirthagars 'as such' but attributes to the ' plaintiffs' certain duties, and he does not discuss Adkyapakam in detail. His conclusion is that the sthalam, first thirtham, Vedaparayanam, Mantrapuslipam, and Adyapaha rights are in the nature of claims to an ' office, and the plaintiffs are such office-holders bound to perform certain duties, and remunerated by substantial emoluments and privilege (page 40 of the printed pleadings). The conclusion seems to us to be this: the plaintiff as hereditary Sthalathars are bound to perform, besides the duties of superintendence attached to their office of Vedaparayanam the ceremonial duties of Sthalathar, etc., and are entitled to receive remuneration for the performance of those duties. Included in this remuneration is 'the privilege of first thirtham' from which the plaintiffs are called 'thirthakars.' That this is the District Munsif's conclusion may also be gathered from his observations in paragraph 19 of his judgment at page 43 of the printed pleadings. It is also substantially what is alleged in the plaint. This conclusion is, we think, accepted by the District Judge. It is involved in his statement that there was no contention before him that the plaintiffs are not the 'first thirthams' or entitled to their emoluments and dignities (paragraph 6 of the printed pleadings). The only contentions before him were (I) that the honours appropriate to the first thirtham. being conceded, the Civil Court has no jurisdiction to decide in what those honours consist, or (2) if it has jurisdiction the honours claimed are not appropriate. The answer to' the first question is that if honour is attached to an office by way of remuneration, the Civil Court has jurisdiction, and the answer to the second is to be found by the determination of a question of fact with which the District Judge deals though in his view it was. unnecessary to do so.
14. The District Judge declines to set out in. his decree the specific honours comprising the privilege of the first thirtham, but he makes a declaration that the plaintiffs are entitled to the honours appropriate to the offices they hold. His view seems to be that though he can declare the nature of the honours generally or specfically, he cannot go further and decide how those honours are to be accorded (paragraph 7, page 105 of the printed pleadings). And later on he states the principle to be that ceremonial episodes such as those under discussion have a dual character, under one aspect the honours accorded to the claimant being emphasised, and under the others their ritual significance, and the Court will exercise control when the importance of the former predominates and the latter can be neglected or is not in dispute (page 106 of the printed pleadings.)
15. Here, as the District Munsif has said, (page 43 of the printed pleadings) it is the precedence which constitutes the honour; the right to receive the thirtham is not in question. If then the Court is to declare the plaintiffs' right to the honour, it seems to follow that it must declare the order of precedence. Taking the findings to be, as we do, that the privilege of the first thirtham is attached to the hereditary office of the plaintiffs as a part of the remuneration of the office, the Court must, to Protect the plaintiffs in the enjoyment of the office, declare what is the honour to which they are entitled. This is in accord with the decisions in this Court even if we accept the Advocate-General's contention that to entitle them. to the protection of the Court, plaintiffs must have something to do, for which the honour is a reward. Here there is a hereditary office involving duties of different kinds, secular and religious, all inseparable from the office, and remunerated in various ways one of which is by the honour in question.
16. In Srinivasa Thathachariar v. Srinivasa Aiyangar and Srinivasachuriar v. Srinivasa Thathachariar 9 M.L.J. 355 the learned Judges did not find it necessary to declare the ritual in order to preserve to the claimant the enjoyment of his office; had it been necessary it is clear from the judgments that they would have done it.
17. As to the other findings of fact, we cannot accept Mr. Ranga Chariar's contention that the burden of proof has been improperly thrown by the District Judge on the plaintiffs. The words 'first thirtham'' are not free from ambiguity and it is for the plaintiffs to show what they mean, what is the right which they claim, and that they are entitled to it.
18. Nor can we accede to the contention that because in the view of the District Judge a decision on some of the issues was unnecessary, his findings upon those issues can be held to be no findings. He has, we think, fully considered all the evidence bearing on the question of the thirtham, and he finds that the plaintiffs have failed to show that the archakas are not entitled to take the thirtham before the conclusion of the puja and while they are behind the screen. That finding we accept, but it does not dispose of the case, because it is found by the District Munsif that in the instance complained of the thirtham was taken by the archakas in the presence of the assembly when the puja was concluded and as we suppose the screen removed, at any rate not behind the screen. Before the District Judge, however, the archakas did not claim this right and it is, therefore, not necessary to call for a finding : the decree may declare, the right of the plaintiffs to take the thirtham first after the close of the puja when the archakas come out from or are no longer behind the screen.
19. In reality the evidence of the Shastras and the other evidence as to the right of the archakas to take the thirtham during the puja is not relevant to the present issue. The plaintiffs' right of the first thirtham must mean as the District Munsif finds, the right to the first thirtham after the close of the puja by the burning of the camphor light. Whether the archakas are entitled before the light is burned and during the progress of the puja to take the thirtham behind the screen concerns the plaintiffs, only in the same way that it concerns other members of the community, that is to say, in so far as they are affected as worshippers by any deviation from or perversion of the ancient rituals. That, however,, is not a matter with which the Court is concerned.
20. As to the Viniyogam, the plaint alleges only one instance in which the plaintiffs' rights were obstructed and that occasion, in the Alwar Sannadhi, is an occasion on which according to the District Munsif's finding, the archakas are entitled to precedence, because there is no sawathanthram (line 5, page 69 of the printed pleadings). The plaintiffs say in the plaint that ever since that occasion they have taken no prasadham. There is, therefore, only one occasion on which it is alleged that the defendants had an opportunity of infringing their rights and as it is found that they were not on that occasion infringed, there is no proof that their rights in regard to viniyogam have ever been infringed or threatened by the defendants. This being so, the declaration as to viniyogam would seem unnecessary, and the District Judge's modification of the decree may be accepted so far as that is concerned.
21. As to damages, the District Munsif believes that the archakas did, on the occasion which has given rise to the suit, infringe the plaintiffs' right by taking the thirtham first and that may possibly have lowered the plaintiffs in the eyes of the assembly: he awarded compensation of one rupee on this account. The District Judge has not found whether it is a fact that the archakas took the thirtham before the plaintiffs after the close of the puja, i.e., in front of the screen, but it is certainly not desirable that the case should be remitted for a finding on so unimportant and trivial a matter as the right of the plaintiffs to nominal damages for a problematical loss of dignity.
22. The matter really in dispute is as to the precedence of the plaintiffs as thirthagars at the Thiruventhikappu ceremony, and it is unnecessary, in our opinion, to set out in the decree other occasions on which they are entitled to honours, which so far as the plaint shows have not been denied to them before the suit. It is sufficient as regards other matters to declare them entitled to their emoluments and honours to meet the general denial by the archakas in their written statement. We, therefore, modify the decree as follows:
For paragraph 8 of the decree (on page 16 of the printed pleadings) we substitute the following:That as holding the above offices they are entitled to the honours and emoluments appropriate thereto including the right to first thirtham at the Thtrurenthikappu when the arc hakas are no longer behind the screen.
23. The mandatory injunction, paragraph 7 (b), will also have to be struck out and in other respects the decree of the District Judge is confirmed.
24. Each party will bear his own costs of the Second Appeals and the memorandum of objections in this Court.