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Vysravanath Manakal Raman Somayajipad Vs. Marampure Thalakkodi Madhathil Karnavathi Kunhu Kutti Kovilamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported in(1918)34MLJ344
AppellantVysravanath Manakal Raman Somayajipad
RespondentMarampure Thalakkodi Madhathil Karnavathi Kunhu Kutti Kovilamma and ors.
Cases ReferredSee Nilakandaru v. Nilakandan
Excerpt:
- - if the legislature has framed its provisions in such a way that a right can be litigated by paying a small fee, the litigant is entitled to avail himself of that privilege to his best advantage. fortunately the integrity of the subordinate judiciary in this country is so well established that there is not much fear of miscarriage of justice by such devices. and in a country like india, where reverence for established institutions and for long continued practices is a sort of fetish, heredity gain recognition far more easily than elsewhere. in this view, i do not consider it necessary to express any opinion on the interesting question of estoppel by tenant argued by the learned vakil for the appellant. as regards the suggestion that that acquisition must be restricted to the right.....seshagiri aiyar, j.1. s.a. no. 924 of 1916. the plaintiff styling himself as the uralan and udama of the kottaseri devaswom sues to redeem a kanom of the year 1898 granted by him to the tarwad of defendants 1 to 11. defendants 12 to 18 are now in possession of the properties. the 19th defendant obtained a surrender of the properties from defendants 1 to 11 and claimed to be the real uralan of the devaswom. the defendants denied that the plaintiff was the uralan and disputed his title to recover the demised properties. both the courts below, though not for the same reasons, dismissed the plaintiff's suit, hence this second appeal.2. before dealing with the merits of the case, it is desirable to draw attention to a feature of malabar litigation which amounts almost to an abuse of the.....
Judgment:

Seshagiri Aiyar, J.

1. S.A. No. 924 of 1916. The plaintiff styling himself as the Uralan and Udama of the Kottaseri Devaswom sues to redeem a kanom of the year 1898 granted by him to the tarwad of defendants 1 to 11. Defendants 12 to 18 are now in possession of the properties. The 19th defendant obtained a surrender of the properties from defendants 1 to 11 and claimed to be the real Uralan of the Devaswom. The defendants denied that the plaintiff was the Uralan and disputed his title to recover the demised properties. Both the Courts below, though not for the same reasons, dismissed the plaintiff's suit, Hence this Second Appeal.

2. Before dealing with the merits of the case, it is desirable to draw attention to a feature of Malabar litigation which amounts almost to an abuse of the machinery of Civil administration. I do not in the least feel influenced by considerations of the quantum of Court-fees paid. If the legislature has framed its provisions in such a way that a right can be litigated by paying a small fee, the litigant is entitled to avail himself of that privilege to his best advantage. But where litigants are permitted to avail themselves of the indulgence of the Court to convert what on the face of it appears to be a trivial and innocuous proceeding into a suit in which grave issues involving very substantial rights and large properties are adjudicated upon, it is the duty of the Court to use all its powers to prevent such an abuse.

3. To come to particulars. The present suit is based on a kanom, but the matter decided has practically no bearing on that question. It is the right of rival Uralans, that of the plaintiff and of the 19th defendant that has been considered in Judgments of enormous length which necessitated the examination of numerous documents old and new. With what result V In Second Appeal, we are called upon to pronounce our opinion on findings which in some instances we can treat as dealing with facts, and which in very many respects necessitate an enquiry into mixed questions of fact and law. If the respective rights of the plaintiff and of the 19th defendant were directly in issue, the suit would have been filed in a different tribunal from which a first appeal would have been preferred to this Court. I cannot help feeling that the leniency with which such litigations are treated may enable a suitor to choose his own time and forum for prosecuting his rights. Fortunately the integrity of the subordinate judiciary in this country is so well established that there is not much fear of miscarriage of justice by such devices. But it is not difficult to imagine circumstances which may lend themselves to the unscrupulous handling of a clever suitor to the detriment of his opponent. I hold very strongly with Mr. Justice Wilkinson that Courts should, as far as possible, refuse to allow a plain plaint to be construed as containing hidden causes of action and to pronounce an opinion thereon. The parties suffer more severely than the Government revenue through such an indulgence. I feel no doubt that the use of all the powers conferred on Courts relating to the addition or deletion of parties, to the returning of plaints for amendment or for presentation to the proper Court with reference to the substantial questions in issue, would tend to advance justice and not to retard it. It may discourage,--what is now pursued as a fine art--the compelling of Courts to deal with questions which ex facie have no relevancy to the reliefs stated in the plaint.

4. Before I leave this subject, let me refer to another concrete instance taken from this second appeal which enforces in a marked degree the necessity for the above caution. For nearly half a century the plaintiff's illom and the 19th defendant's Kovilagona have been playing a game of hide and seek. They dared not face each other. In suits for rent and for redemption, tenants were encouraged to set up the rights of the 19th defendant's Kovilagom. Documents were summoned from and produced by the rival claimant. Some of them were characterised as impudent forgeries in the earlier litigation; but as time has rolled on, they have gained sanctity by age : they have now risen to the distinction of being reverentially handled lest they crumble to pieces and to the dignity of being regarded by the translator as on undescipherable in places as to words, syllables and phrases. I am referring to Exhibit VII in particular; let us look at the result. On the present occasion, the Subordinate Judge, differing from the District Munsif and differing from a previous Subordinate Judge has held that the document is genuine. In second appeal we are perforce compelled to accept that finding. If, in the earlier litigation, the Court had refused to raise any issue on the rival claimants' rights or to permit subpoenas to be taken out on those issues, the question would soon have been brought to a head and the parties would have directly raised the point earlier. I have made these prefatory remarks as I feel that the laxity of the Courts helps dishonest litigants to resort to devices for stifling justice and for availing themselves of the processes of law to gain an undue advantage over honest litigants.

5. Now I shall deal with the case bearing in mind the limitations which the law imposes on a Court sitting in second appeal. Mr. K. Srinivasa Aiyangar for the appellant and Mr, T.R. Ramachandrier for the respondent have placed before us all that can be said in favour of their respective clients. The main points for decision are:

(a) Whether the Kovilagom of the 19th defendant has a subsisting uraima right in the plaint Devaswom;

(b) Whether the plaintiff is only a Samudayi; if so, what are his functions and privileges?

6. A large number of subsidiary issues have to be considered in connection with these two questions. The history of the urairnaship of the Devaswom is lost in antiquity. It is not disputed that three Nambudri Illoms were entitled originally to contribute each one uralan to the temple. Two of them became extinct before 184.1. The last illom which may for brevity's sake be called the Oravil Illom had an undoubted claim to one uralan. From Exhibit XV, it is clear that the last surviving member of the Oravil Illom assigned the uraima right to the Padinhare Kovilagom of which the 19th defendant is the present Thamburatti. From subsequent documents which it is not necessary to refer to at length, it appears that the transferor regarded himself as jointly entitled with the Padinhare Kovilagom to be the uralan of the temple. It may be that the last member of the Oravil Illom acquired the rights of the two other illoms by Attaladakkam right. It is unnecessary to pursue this enquiry. The Oravil Illom became extinct in 1843.

7. To my mind, it admits of no doubt that originally the plaintiff's predecessors regarded themselves only as agents of the uralan. It is the subsequent development of their rights and the extinction or supercession of the rights of the 19th defendant's kovilagom that have to be considered in this case. I may at once say that the pretension of the plaintiff to style himself as the udama or the owner of the Devaswom has not a shred of evidence to support it. Mr. Srinivasa Aiyangar did not argue the case on that footing, His contention was that since 1860, the plaintiff's predecessors have been setting themselves up as the sole managers of the Devaswom and have thereby acquired an indefeasible right to manage its affairs, by whatever name they may be called. He also argued that the 19th defendant's kovilagom lost the right, if they possessed it at any time, by the bar of limitation.

8. It is common ground that the transfer referred to in Exhibit XV was incapable of conferring a legal right to the uraimaship Mr. Eamachandrier contended that by exercising the rights of a uralan since 1841, the 19th defendant's kovilagom acquired a prescriptive title to be uralans, that the management by the plaintiff was only in his capacity as Samudayi, that the latter did not and could not acquire the uraima right, and that therefore plaintiff has no right to recover possession of the demised properties.

9. These arguments of the learned vakil necessitate an enquiry into the respective rights and duties of a Uralan and of a Samudayi. It has to be borne in mind, in this connection, that the plaintiff's illom has been the hereditary Samudayis of the Devaswom long before 1841. Before referring to the cases which deal with the functions of the various dignitaries connected with a Devaswom, it may be useful to enquire into the history of their offices. In Malabar, as on the East Coast, temples, in most instances, owe their existence to the munificence of some ruling chief or nobleman. But it would be inaccurate to say that all of them have been so founded. In a small village, the villagers might establish a temple--not a few instances of this kind are to be found on the East Coast, and I do not suppose religious evolution has been working differently on the West Coast. Whenever an influential chief or karnavan founded a Devaswom, he would in addition to being its founder be its uralan also. Distance from the temple and other considerations might induce him to appoint others to manage the affairs of the Devaswom. The word Samudayam denotes an assembly of persons, That is its etymological moaning. The chief inhabitants of a village where the temple is founded would naturally be the persons to whom the management would be entrusted. They may among themselves select a person to be their agent or it may be that the founder himself might ask one person among the villagers to be the manager. In course of time, the successive discharge of duties by the members of the same family would ensure to that family the privilege of giving the manager from its members. This is the process by which the principle of heredity has been evolved all over the world; and in a country like India, where reverence for established institutions and for long continued practices is a sort of fetish, heredity gain recognition far more easily than elsewhere. In Malabar these conservative tendencies are at their highest. In my opinion, this process accounts for the existence of what are known as hereditary Samudayis. There are other hereditary offices connected with a Devaswom. I feel no doubt that at its inception the Samudayi was only the agent of the uralan, if there was one, but the reasoning by which a hereditary Samudayi can be regarded as a perpetual agent is a conception of law which demands serious consideration. Further, it is not correct to assume that the Samudayi remained an agent pure and simple even after the extinction of the house which founded the Devaswom. The suggestion of Mr. Ramachendrier that, if the Tarwad or Kovilagom which founded the Devaswom became extinct, the right of the uralan would escheat to Government requires more authority to support it than the learned vakil has given us. After the policy declared in Act XX of 1863 it is open to argument that the Government divested themselves of their right to claim this particular kind of escheat, even if the proposition is unexceptionable, that the right of trusteeship which vested in the owner of temporal properties would pass by reversion to the Crown by virtue of his private properties having escheated. It is more natural to suppose that the disappearance of the hereditary Uralan will be followed by the development of the Samudayam into the Uralan, In Moore's Malabar Law this process is hinted at as of constant occurrence. Mr. Justice Holloway seems to have set his face against this practice.

10. Before passing away from this subject, I may say that the main conditions regarding the respective functions of these officers of the temple are not to be gathered from a priori notions regarding their rights as understood in ancient times, but from the usages of the particular institutions concerned. There may be a temple in which the Uralan is the person in whom the property and the management vests and such a temple may have a Samudayi who will be the agent of the Uralan. In such a case, the Samudayi will not be entitled to sue or defend actions in his own name. There may be institutions in which an absentee Uralan performs only the functions of a supervisor or controller, leaving the management and legal ownership of the dewaswom properties in the Samudayi. The Uralan in such a case will have very nearly the powers of a temple committee and the Samudayi those of a trustee. The right of suit will be in the Samudayi in these institutions. There may be a temple in regard to which the founder's family which exercised the Uraima right ceased to exist generations ago. In such a case, the Samudayi will be the real Uralan.

11. On the merits, the first point raised by Mr. Srinivasa Aiyangar was that the suit should be confined to the consider tion of the question whether defendants Nos. 1 to 11 have any valid defence to surrendering property which they obtained under the demise of 1898 and that the rival claims of the plaintiff and of the 19th defendant should not be gone into in this case. He argued that the 19th defendant was impleaded not because he claimed the Uraima right, but on the ground that he was the assignee of the other defendants. In view of the principles enunciated by me in the opening paragraph of this judgment, I would have been prepared to strike out all the averments on either side which do not relate to the question of surrender, had it not been for the fact that the plaintiff deliberately challenged the title of the 19th defendant and invited a decision upon the respective title of the parties. Even this may be ignored, but for the fact that the questions involved in the suit have been elaborately gone into in the two Courts and it would result in sanctioning a waste of judicial time and energy, if, at this stage, the plaint is directed to be amended by striking out the contentions relating to the 19th defendant or is directed to be presented to the proper Court on the ground that the substantial relief claimed in the plaint should be properly valued. The plaintiff apparently felt emboldened by his successes against tenants behind the back of the 19th defendant and was prepared to meet him in the open field. The 19th defendant thought that this was her last chance and concentrated all her strength upon establishing her case. Much as I regret that the Courts below should have allowed this suit to be treated in the way it has been done, I am not prepared to wipe out all that has been put on the record by either side and to treat the suit as one for redemption pure and simple. In this view, I do not consider it necessary to express any opinion on the interesting question of estoppel by tenant argued by the learned vakil for the appellant.

12. The next contention was that the Kovilagom of the 19th defendant had no right to the Uraima right. Until the Judicial Committee ruled in Rajah Vurmah Valia v. Ravi Vurmah Kunhi Kutty I.LR. (1876) Mad. 235 that an assignment of the trusteeship was opposed to public policy, it seems to have been the practice not only on the West Coast, but also on the East Coast to transfer such rights. But the pronouncement of the Committee must be deemed to have declared the pre-existing law. Therefore, the question is whether the Padinhare Kovilagom acquired a prescriptive title to be the Uralan of the Devaswom, The learned vakil for the appellant contended that beyond an acknowledgment by the plaintiff's illom of their liability to render accounts, the Padinhare Kovilagom was not shown to have had any possession of the Devaswom properties either actually or constructively and that consequently no adverse possession was acquired. The documents to which the learned vakil for the respondent drew our attention show that the 19th defendant's Kovilagorn was in management of the properties through the plaintiff's illom. Exhibits XXXIII, XIII, I, LXXXVII, I(a) and XII, among other documents prove active participation in the affairs of the Devaswom. The Subordinate Judge has found that up to 1860 the Padinhare Kovilagom' took an active part in looking after the affairs of the plaint temple'; and I think there is ample evidence to support this finding. I therefore hold that the 19th defendant's Kovilagom would have acquired a prescriptive title to the Uraimaship by the year 1860 if the law permitted them to do so. As regards the suggestion that that acquisition must be restricted to the right of one of the Uralans alone and that the plaintiff must be deemed to have adversely enjoyed the other two Uraima rights, it is enough to say that there is no trace in any of the numerous documents filed in the case that the plaintiff's illom prescribed for the rights of the two Uralans of the two extinct illoms.

13. The finding of the Subordinate Judge on this question is stated in these terms at the end of paragraph 18. 'From 1886 onwards plaintiff's Mana was allowed to have its own way in all matters '. Mr. Srinivasa Aiyangar contended that, as under the old Limitation Acts in force up to the year 1871, there was no provision for acquisitive prescription even granting that the 19th defendant's Kovilagom had possession of the Devaswom properties through their agents, they were not entitled to be regarded as Uralans. I was at first inclined to agree with this contention, but the course of decisions in the other Presidencies to which Mr. T.R. Ramachandrier drew our attention shows that even under the old Limitation Acts and Regulations, title by prescription was held to have been acquired. The decision in Gunga Gobind Mundul v. The Collector of 24 Pergunnahs (1867) 11 M.I.A 345 certainly lends support to this proposition. At first it looks as if the suit brought by the plaintiff in that case was dismissed as being barred by limitation, but the observations in page 362 suggest that even under the old Acts a prescriptive title could have been acquired. This was the interpretation of that decision adopted in Brindabun Chunder Roy v. Tara Chand Banerjee (1873) 20 W.R. 144. The Calcutta High Court have taken that view consistently. See Gossain Dass Chundur v. Issur Chundur Nath I.L.R (1877) Cal. 224 and Ram Chunder Ghosal v. Juggut Monmohiney Dabee I.L.R. (1878) Cal. 283. In Jagamba Goswamini v. Ram Chandra Goswami I.L.R. (1904) Cal.314 Justices Rampini and Pratt reviewed all the earlier decisions of their Court and said that notwithstanding the fact that there was no provision in the earlier Regulations and Acts of Limitation similar to Section 29 of the Act of 1871, title by prescription could have been acquired under the old Act, see page 317. In Jagrani Bibi v. Ganeshi I.L.R. (1881) All. 435 the same view was enunciated following Gossain Vass Ghunder v. Issur Chunder Nath I.L.R. (1877) Cal. 224 and the decision of the Judicial Committee in Ganga Gobind Mundal v. The Collector of 24 Pergannas (1867) 11 M.I.A 345. In Radhabai and Ramachandra Konher v. Anantrav Bhagvant Deshpande I.L.R. (1885) 9 Bom. 198 the Full Bench of the Bombay High Court accepted this view of the law. See the judgment of West J. at pages 228 and 229. As against these decisions there is an old decision of this Court in Kesava Pillai v. Peddu Reddi (1862) 1 M.H.C.R. 95., in which it was pointed out that under the Act of 1859 no prescriptive title could be acquired. I do not think that it is safe to follow this ruling in preference to the pronouncement of the Judicial Committee which has been accepted in all the other High Courts. It is to be borne in mind that under the English law even before the statutes contained any provision by way of prescription the English Courts held that continued long possession adversely to the owner would confer title to the property. I therefore am of opinion that the 19th defendant's Kovilagom must be deemed to have acquired a prescriptive right to the property before 1860.

14. The next contention of the learned vakil for the appellant was that since 1860 the 19th defendant's Kovilagom ceased to manage the temple affairs and that the plaintiffs illom acquired a prescriptive title thereto as Uralan, Mr. Eamachandrier's answer was two-fold. He relied on the principle that 'once a Sanaudayi always a Samudayi' and contended that the plaintiff's illom was incapable of acquiring a prescriptive title so long as it did not divest itself of the functions of a Sumudayi; secondly, he contended that the course of conduct pursued by the plaintiff's illom showed that they only prescribed for a Samudayi's right and for no more.

15. As regards the first contention the learned vakil referred to Section 109 of the Evidence Act. It is true that once a relationship like that of principal and agent is established, it would require very strong evidence to show that relationship was abandoned and that a new right was asserted to the knowledge of the principal. But the position in the present case is not that of an agent appointed by the principal. As I stated before, it is a case of hereditary agents under hereditary principals. What I understand by the term hereditary agent or Samudayi is this : that ordinarily you will have to look to the family of the Samudayi for a person to manage the affairs of the Devaswom. On the death of the previous Samudayi and by the fact of a member of the Samudayi's family entering upon the duties of a Samudayi, it may be taken that he was impliedly appointed by the then Uralan to discharge the duties of an agent. It would not follow from this that the acts and declarations or omission of the previous Samudayi who was a member of the same family would be binding upon the succeeding Samudayi. I do not say that there should be a sannad of appointment in the case of each successor, but I would require very strong authority to convince me that each succeeding agent though he belonged to the same family was bound by the acts or conduct of his predecessor in office. Therefore, granting for the sake of argument that by Exhibits VII and XLIV the Samudayi in office at the time recognised the right of the 19th defendant's Kovilagom, it does not follow that that acknowledgment would affect his successor. The Subordinate Judge has given the dates of succession of the various Samudayis from 1843. It is clear from that statement in paragraph 3 that the Saiimdayi who acknowledged the title of the 19th defendant's Kovilagom in 1843 was succeeded by one Pararneswaran Nambudri who died in 1852, that this man was succeeded by Narayana Somyajipad in 1872-1873 and that the plaintiff succeeded to the management in 1892-93. Now if there is evidence from 1892 onwards that the plaintiff repudiated to the knowledge of the 19th defendant's Kovilagom the title of that Kovilagom and asserted his right to be independent of that Kovilagom, 1 fail to see why the recognition by his ancestor in 1843 should be against his setting up a right in himself. In 1892--93 there was a very important proceeding to which sufficient attention has not been paid by the Subordinate Judge. In that year the Government contemplated instituting proceedings in escheat regarding the properties and rights possessed by the Oravil Illom, It is conceded that to this proceeding the plaintiff's illom as well as the 19th defendant's Kovilagom were parties. Mr. Kamachendrier relied upon these proceedings on the ground that the Government dropped their intention of claiming the properties by escheat because the 19th defendant's Kovilagam established its right to them. It may be that that consideration operated on the Collector to give up his idea of claiming the properties of Oravil by escheat, but at the same time it is clear that the plaintiff's illom set up its independent right to manage the Devaswom to the exclusion of the 19th defendant's Kovilagom. As the 19th defendant's Kovilagom was a party to these proceedings, her predecessors in interest must have been aware cf the adverse claim set up by the plaintiff's illom.

16. Now the question is as to whether this assertion conferred a right on the plaintiff's illom to manage the properties without the intervention of the 19th defendant's Kovilagam. I am not now concerned in paying that the assertion amounted to claiming Uraima right itself. It may be that the plaintiff did not until 1902 set up a right as Uralan but if the plaintiff's predecessor Narayanan Somayajipad asserted that he was entitled to manage the properties of the Devaswom on the ground that there are no Uralans for the temple, will not that confer a right upon him to sue in his own name to recover property on behalf of the Devaswom, Mr. Ramachandraier strongly relied upon the decision in P.K. Unni Nambiar v. C.M. Nilakandan Bhattdthiripad I.L.R. (1882) Mad 141, for the proposition that a Samudayi can never sue to recover trust property. I have examined this case very carefully. I do not think that the present case is covered by that judgment. At the same time, I must express my respectful dissent from some of the very broad propositions enunciated by the learned Chief Justice, Mr. Justice Innes' judgment is not really in conflict with my view. It was apparently found in that case that there was an Uralan in active management and that the hereditary samudayi was appointed by that Uralan. The learned Judge points out that the religious institution was in the hands of trustees or Uralans. In that view of the facts the learned Judge was right in holding that the Samudayi could not maintain a suit in his own name. The learned Chief Justice states that the powers of the Samudayi are confined to the management of the temple and that when occasion requires, resort should be had to the course of applying to the Uralans to lend their names. If it was intended to lay down as a general proposition of law that under no circumstances could a Samudayi institute a suit in his own name, I would respectfully dissent from the proposition. But, as I said before, the facts of the case justify the conclusion arrived at in the judgment of the Court. The other case relied upon is Kunjunneri Nambiar v. Nilakandan I.L.R. (1880) Mad. 167. The judgment in that case is very short and from the statement of facts it is clear that the Samudayam was a hereditary one and that the Samudayi executed the kanom deed as the agent of an existing Uralan. Rama Variar v. Krishna Nambudri I.L.R (1881) Mad. 270 was a case where the Samudayi managed the temple affairs under a written agreement executed to the Uralan. On the other hand we have some unreported decisions in which it has been held that a Samudayi can maintain a suit in his own name. Second Appeal No. 61 of 1881, Second Appeal No. 1688 of 1888 and Second Appeal No. 2256 of 1914. The truth is, in a conservative country like Malabar, where the dead weight of pre-existing custom is found to be intolerable, recourse is being had constantly to circumvent that custom by circuitous methods. It may not be the province of the Court to encourage such devices but where a long-standing practice has come into existence which is not in strict conformity with preconceived notions and which is not opposed to reason or justice, courts will not be justified in falling back upon old usage and to refuse to pay attention to the course of development in recent years. It may be that a Samudayi was not originally intended to usurp the functions of a trustee, but it would be idle to deny that they have successfully usurped the duties of the trustee in recent years, have completely ignored the Uralans, and have placed themselves in possession of the Devaswom properties. I am not therefore prepared to accede to the contention of Mr. Ramaehandrier that the moment a person is described as a Samudayi he must be confined to the exercise of the functions which in ancient times were considered to be his, and that he should not be permitted to acquire new rights and obligations. The cases quoted by him only show that there must be an open and notorious disavowal of agency before a new right is prescribed. Williams v. Pott (1871) L.R. 12 Eq. 149, Burdic v. Garrick (1870) 5 Ch. App. 233 Attorney General v. Corporation of London (1849) 2 Mac& G. 247, Corea v. Appuhamy (1912) A.C. 230, and Lyell v. Kennedy (1889) 14 A.C. 437 are all cases where the courts required the strongest proof on the part of the agent who set up a title adverse to the principal. I do not take these decisions to lay down that under no circumstances can an agent prescribe for the rights of the principal, On the facts of the present case I am prepared to hold that there has been a distinct repudiation of agency by the plaintiff's illom and the acquisition of an independent right to manage the Devaswom affairs without recourse to an Uralan. It is not necessary for me to say that the plaintiffs have become trustees. As was pointed out by the Judicial Committee in the case in Jagadindra Nath Roy v. Hemanta Kumari Debi I.L.R. (1901) Cal. 129, in order to enable a person to sue on behalf of a religious institution, all that is necessary is possession and management of its affairs. If both these are found it does not matter by what name the person is known. Moreover since 1892 the plaintiff's illom had been granting demises in their own name and have been instituting suits to recover demised properties in their own name. The l9th defendant's Kovilagom never instituted any suit or granted any demise since at least 1860. Under these circumstances, I have come to the conclusion that the right to institute a suit on behalf of the Devasworn has become vested in the plaintiff's illom and that it is not open to defendants 1 to 11 to refuse to surrender the properties which they obtained on demise from the plaintiff.

17. On the question of what would suffice as repudiation of agency, I may refer to Dadoba v. Krishna I.L.R. (1883) 7 Bom. 34, Nabab Mir Sayad Alamkhan v. Yasin Khan I.L.R. (1893) 17 B. 755 and Sankaran v. Krishna I.L.R. (1893) Mad. 456. quoted by Mr. Kutti Krishna Menon. It is true that in Travancore and Cochin, the Samudayi is regarded as being entitled to sue for rents but not to sue to recover possession. See Nilakandaru v. Nilakandan 18 R.L.R. 129. These cases must be confined to Samudayis who have been appointed by the Uralans. In conclusion I must guard myself by saying that I do not decide that the 19th defendant has no rights in the temple. Whether she is still Uralan, and if she is, whether her rights are only those of supervision and control may have to be decided. It is enough for the disposal of the present litigation to say that the plaintiff has acquired a prescriptive right to manage the Devaswom properties by granting kanoms and by instituting suits for redemption etc., and is entitled to possession. I must therefore reverse the decree of the Court below and remand the appeal. There is issue 8 regarding improvements which have to be decided by the Court of appeal. In the circumstances of this case having regard to the extravagant rights set up by the plaintiff and to the fact that the 19th defendant is not altogether an interloper, I think it is proper that each party should be, directed to bear its own costs hitherto incurred.

Napier, J.

18. I agree and only wish to add that in my opinion the proposition that a hereditary Samudayi whose office entails the doing of many acts of management is a mere agent of the Uralan and thus affected by the ordinary principles of agency, if that is what is intended to be laid down in the early cases, requires reconsideration.

Judgment in Second Appeal No. 925 of 1916.

19. This Second Appeal follows the decision in Second Appeal No. 924 of 1916. The Lower Appellate Court will have to decide issue [I as well.

Judgment in Second Appeal No. 926 of 1916.

20. Following the judgment in the principal case, the decree of the Lower Appellate Court is reversed. The Subordinate Judge will now decide Issues 2 and 6.


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