Balakrishna Ayyar, J.
1. The plaintiff is the appellant. He sued for a declaration that he is the trustee and pujari of six deities mentioned in the plaint and for an injunction to restrain the defendants from obstructing him from enjoying the suit property and from exercising the rights and performing the duties of his office. It may, be mentioned at once that though in the plaint six deities are mentioned it has been found that the sixth of them namely, the deity called Thangammayee Amman is, if one may use that expression, a private deity and outside the scope of this litigation.
2. The defendants pleaded that the plaint deities have no temple, that there are not even idols for them, although pooja was being performed for them under a tree and that the management of the affairs of the plaint deities has been for a long time in the hands of the second defendant and his ancestors acting 'in consultation with the people of Paranam village and according to their advice.'
3. The learned District Munsif found that the plaintiff was the poojari and trustee and decreed the suit as prayed for with costs. On appeal the learned Subordinate Judge found that the plaintiff was only the poojari and that the village community was the trustee and in that view he modified the decision of the learned District Munsif.
4. On this matter, I am inclined to prefer the conclusion of the learned District Munsif. The immovable properties owned by the temple consist of only the melwaram due from three cawnies ofland with an annual yield of Rs. 9/- and another piece of land purchased in 1918 under Ex. D-1 (a) for a sum of Rs. 19. The movable properties of the deities are however said to be worth Rs. 3000. The principal income of the temple consists of the collections and contributions made by the villagers and worshippers at the time of the annual festival in Masi. P. W. 2 deposed that the annual pooja was performed by the villagers, that before the festival the villagers would assemble, collect subscriptions and arrange for the performance of the pooja; and if the villagers do not arrange for it, the poojari could not do it on his own responsibility. To a like effect was the evidence of P. W. 3. This circumstance, the learned Subordinate Judge was inclined to regard, as inconsistent with the claim of the plaintiff that he was the trustee, I find it difficult to agree. Where a deity has no property of its own and the expenses of any celebration have to be met from collections and contributions provided by the villagers, obviously it would be impossible for the poojari or trustee to do anything without their active Co-operation and assistance. But this does not mean that the villagers become the trustees. It is more material to consider that amount of control the villagers exercised over the moneys they placed in the hands of the poojaris or trustees. Dealing with this aspect of the matter the learned District Munsif observed:
'......there is no evidence at all to show thatthey (villagers) have control over the collections at the poojas or have the ordering of the disposal of it. On the other hand, the evidence is that the offerings are handed over to the plaintiff and that too without counting the collections. In my view, the villagers' activities are more in the nature of rendering assistance for the performance of this big festival than exercising control over it......'
No doubt, an assertion was made that the plaintiff was liable to account to the general body of the villagers. But this is a theoretical liability which attaches to everybody who receives moneys collected from or contributed by others. More to the point is the fact, remarked on by the learned District Munsif that there is scarcely any evidence worth the name to show that the plaintiff has ever been called on by the villagers to render accounts. If the villagers were the trustees and the poojari was only their agent, he would normally have been called on to account, in however perfunctory a manner.
5. It has been already stated that the immovable properties owned by the deities consist in part of the melwaram from three cawnies of inam lands. About two cawnies of this property, are in the possession of defendants 2 and 5. The remaining cawni is in the possession of one Govinda Padayachi. The defendants adduced evidence to show that the second defendant used to collect the money payable by Govinda Padayachi and with the money which he had himself to pay supplied the articles necessary for the 'Sakthi Azhaippu' ceremony at the annual festival. The learned Subordinate Judge thought that this circumstance supported his view that the plaintiff could not have been the poojari. Now, the second defendant appears to be the 'nattamaikar' of the place and therefore a person of some consequence in this village. If such a person instead of directly paying his dues to the plaintiff leaving him to use that money to purchase the necessary fruits, cocoanuts and the like, himself also collected the money due from Govinda Padayachi and provided the articles necessary, that would be nothing more than an ordinary act of cooperation in the celebration of the festival by a villager of some consequence.
6. One item of the suit property belonging to deity No. 1 was purchased in 1918 under Ex. D-1 (a). In that document the second defendant's father is described as a trustee of the deity. The learned Subordinate Judge considered that the money for the purchase came out of the funds of the village and that the purchase was an act of the village community in the exercise of its functions as trustee. Undoubtedly, the circumstance that in this transaction the father of the second defendant represented the deity and that in the sale deed he was described as trustee of the deity is certainly an important piece of evidence inconsistent with the case of the plaintiff. But then if that recital were correct and the father of the second defendant were really the trustee of the deity, the possession of the property must have continued in him; but that did not happen. On the other hand possession was always with the plaintiff. As the learned District Munsif remarked the only immoveable property of the deities (other than the manyam lands) has been in the possession of the plaintiff. The kist receipts for the properties were also produced by the plaintiff. The clear fact that the second defendant's father did not attempt to retain or was not allowed to retain possession of this property and that instead possession remained with the plaintiff clearly affects, as the learned District Munsif himself remarked, the value of the recital in Ex. D-1 that the second defendant's father was the trustee of the deity. It is also of interest to remark that the patta for the property which originally stood in the name of the deity was during the period 1938 to 1943 transferred in the name of the plaintiff as the manager of the deities and not to the 2nd defendant's father or the 2nd defendant or any other villager. In 1944 the pattas were re-issued in the names of the deities. This was apparently done because the poojaris of other temples wanted their names also to be mentioned in the respective pattas and thereupon the Dewan of the Udayarpalayam estate wherein the land lies ordered that pattas should be issued in the name of the deities alone. It has been stated that the moveable properties of the deities are worth about Rs. 3000 and their custody was clearly and always in the hands of the plaintiff. The defendants attempted to explain away this circumstance by alleging that they were kept in a building belonging to the villagers as a whole, that as the building had to be repaired, these articles were entrusted to the plaintiff- as a temporary measure. Obviously, if a situation arose in which it became necessary to entrust articles of such value to one of the villagers, I would have thought that the villagers would have preferred the second defendant who was the 'nattamaikar', to the plaintiff who would have been only a poojari. The explanation itself is shown to be untrue by the admission of D. W. 1 that the key of the building in which the properties are locked up has been with the plaintiff for 16 or 17 years. The learned Subordinate Judge was impressed by the evidence of D. Ws. 1, 3 and 4 to the effect that the plaintiff was paying the kist for the suit land from put of the common funds left with him. Now, so far as I can see, D. W. 1 says nothing on the matter. So far as D. Ws. 3 and 4 are concerned, it is difficult to understand how they could possibly say from what source the plaintiff paid the kist money. In considering the question whether the plaintiff was only a poojari or was also a trustee, it is useful to bear in mind the circumstance that the immoveable properties owned by the deities are only of inconsiderable value, that the only act of management that could be exercised in relation to them namely the payment of kist was being done by the plaintiff, that all the moveable properties whichare of considerable value had been in the custody of the plaintiff and that there is nothing to show that any control was exercised over him as regards the manner in which he disposed of the collections and contributions made for the annual festival.
7. In 'Paningappali Ramaswami v. Pentakota Ramaswami', 2 Mal. L. J. 247 it was observed that where an archaka has been managing the affairs of a temple with the knowledge and privity of the worshipers, the presumption is that he is the dharmakartha as well as the archaka. In the present case both the offices appear to me to have been combined in and held by the plaintiff.
8. Mr. Desikan, the learned advocate for the respondents raised another point. He read out that portion of the plaint in which it is alleged:
'My grandfather, after his death my father, after his death, my junior paternal uncle and after his death myself, have been doing pooja to the plaintiffs-deities for a period, of over 13 years.'
and argued that this amounted to a claim that the plaintiff was the hereditary trustee and that Section 84(1) of the Madras Hindu Religious Endowments Act bars the action. That section enacts that where a dispute arises as to whether a trustee is a hereditary trustee or not, such a dispute shall be decided by the Board and no Court in the exercise of its original jurisdiction shall take cognizance of any such dispute. In respect of this argument, it is sufficient to say that though this averment does occur in paragraph 3 of the plaint, no declaration is asked for that the plaintiff is the hereditary trustee. All that is asked for is that he be declared a trustee; and no declaration or relief is asked as regards the hereditary character of the office of trustee.
9. In the result, the appeal is allowed and thesuit decreed with costs throughout. Leave refused.