1. The plaintiff brought this suit for a. declaration of his right to perform the Thiruppallandu Mandapappadi on the first day of the Pagalpathu festival in the Adinathar temple in Alwar Tirunagari and to receive the honours and emoluments connected therewith and for an injunction and damages. Both the plaintiff, who belongs to the eastern Tirumaligai and the defendants 1 to 4, who belong to western Tirumaligai are Acharyapurushas of the temple, though it is not upon the holding of the office of Acharyapurusha that plaintiff bases his title to perform the Mandapappadi ceremony but upon an alleged hereditary right established by usage for a long series of years, Defendants 5 to 7 are the trustees of the temple, who are alleged to have assisted the other defendants in interfering with the plaintiff's exclusive right to conduct the performance.
2. In the lower Courts, as also here in second appeal, it was contended that the suit was not maintainable.
3. In dealing with questions as to the maintainability of suits connected with the assertion of rights to perform acts Of religious worship and with the assertion of rights to receive the honours and emoluments accompanying such worship, the Courts in this country have been guided by fairly well defined principles although the distinction to be drawn between particular cases to which these principles have been applied is sometimes rather narrow.
4. One class of cases comprises those in which a plaintiff sues to establish his individual right of public worship from which he has been wrongfully excluded. Such are the cases dealt with in Vengamuthu v. Pandaveswara I.L.R. (1883) M. 151 Kadirvelu Chetty v. Nanjunda Iyar (1916) 8 L.W. 512 Nagiah Bathudu v. Muthacharry (1900) 11 M.L.J.215. With these are closely associated cases in which a right of access to religious objects is sought to be established, as these generally involve questions of caste status and as that is a matter of civil right. Venkatachalapati v. Subbarayadu I.L.R. (1890) M. 298 and Jaganath Churn v. Akali Dassia I.L.R. (1893) C. 263, are instances of this.
5. In a different category fall suits brought by worshippers under Act XX of 1883 to compel the performance of acts of worship in which there has been neglect of duty on the part of a trustee or manager of a temple or other religious institution--e. g., Elayalwar Reddiar v. Namberumal Chettiar I.L.R. (1899) M. 298=10 M.L.J. 86.
6. The next class includes suits to establish a claim to an office with emoluments. It has always been held that such suits will lie because the right to emoluments is a civil right connected with property, although the determination of it may involve the decision of questions of religion. Such are the cases in Rangasami v. Ranga I.L.R. (1892) M. 146 Krishnasami v. Krishnama I.L.R. (1882) M. 813, Ayyadurai Gurukkal v. Ramasawmy Gurukkal (1913) 18 I.C. 475. An extension of this principle appears in certain cases when what is claimed is not emoluments of any pecuniary value but honours attached to an office in lieu of emoluments. In such cases it has been held in Sri Rangachariar v. Rangasami Buttachar I.L.R. (1908) M. 291 and Soma Ballachariar v. Tiruvenkatachariar (1912) 15 I.C. 409 that a suit will lie, although it has been frequently. declared that a suit will not lie to establish a claim merely to receive religious honours and emoluments unconnected with any office, vide Striman Sadagopa v. Kristna Tatachariar (1863) 1 M.H.C.R. 301 Sangappa Bin Baslingappa v. Gangapa Bin Niraniapa I.L.R. (1878) B. 176 Narayan Vithe Parab v. Krishnaji Sadashiv I.L.R. (1885) B.233 Subbaraya Mudaliar v. Vedantachariar I.L.R. (1901) M. 23=11 M.L.J. 171 Karuppa v. Kolanthayan I.L.R. (1883) M. 91 Athan Sadagopa Chariar Swamigal v. Elayavalli Srinivasa Chariar (1913) M.W.N. 289 and Chunnu Datt Vyas v. Babu Nandan I.L.R. (1910) A. 627 The reason why Civil Courts will not take cognizance of such suits is expressed by Scotland, C.J. in Striman Sadagopa v. Kristna Tatachariar I.L.R. (1879) M. 62 as follows:--' The duty of individuals to submit to and perform certain religious observance in accordance with the ritual or conventional practice of their race or sect is, in the absence of express legal recognition and provision, an imperfect obligation of a moral and not a civil nature.' The mere fact that the plaintiff in such cases may ask for damages on account of the loss of some perquisites or trifling gifts, which he has been prevented from getting, as in the present case, will not change the character of the suit, for such so called emoluments may be merely symbols of recognition and marks of respect to the performer of the ceremonies, as it was held in Narayan Vithe Parab v. Krishnaji Sadashiv, 5 Subbaraya Mudaliar v. Vedantachariar 9. B.H.C.R. 418 and Striman Sadagopa v. Kristna Tatachariar I.L.R. (1879) M. 62.
7. Cases of exclusion from public worship stand in a class by themselves. In other cases the tests to be applied are first to see whether the honours or emoluments are attached to any office and next whether the offerings are voluntary on the part of the worshipper and whether the dignity conferred on him by the temple authorities is in consequence of the performance of any duty or obligation or is a matter of discretion on their part.
8. If the office in suit is attached to a temple, it has been held in Mamat Ram Bayan v. Bapu Ram Atai Bura Bhakat (1906) 15 M.L.J. 458 that a suit will lie to establish a right to a hereditary office attached to a temple even though there are no emoluments of the office, the reason apparently being that such a suit is in effect to compel the fulfilment of a religious trust. The case, Srinivasa, Thathachariar v. Srinivasa Aiyangar and Srinivasa Chariar v. Srinivasa Thathachariar I.L.R. (1882) M. 15 is similar.
9. Another distinct class of cases includes suits for pecuniary benefits or payments in kind for religious services rendered, these being based on an implied contract, as in Krishnama v. Krishnasami I.L.R (1885) B. 293 Waman Jagannath Joshi v. Balaji Kusaji Patil I.L.R. (1883) 7 M., Narasimma Chariar v. Sri Kristna Tata Chariar I.L.R. (1888) M. 450 and in Narayan Sadanand Bava v. Balakrishna Shideshvar I.L.R. (1908) M. 291, the last being a case where a plaintiff, who enjoyed an exclusive right to break a curd pot on a certain day in a particular part of a temple, alleged that he had been deprived by the defendants' interference of a sum of Rs. 5,000 which he expected to get as a donation for the said religious performance.
10. In the present case the Mandapappadi is a ceremony performed at a periodical festival connected with the Athinathar temple of Alwar Tirunagari. The plaintiff claimed a hereditary right to bear the expenses of the ceremony and to receive the prasadham and other honours connected therewith, which include some trifling gifts of garlands etc. of no real pecuniary value the expense of which the Subordinate Judge found to have customarily been borne by the temple. The defendants 1 to 4 denied the plaintiff's exclusive right to make the sirappus and receive the honours but admitted that only one person had a right to make the response ' Nayinda ' to the Arulipadu and to receive the honours connected with the ceremony, that person being the senior member present of the Tirumaligai family including the eastern and western branches.
11. The written statement of the trustees was to a similar effect. This is of value as throwing light on the nature of the right in suit although the maintainability of the suit must depend on the nature of the right asserted in the plaint and the relief claimed by the plaintiff.
12. It has been vigorously argued for the appellants that the performance of worship by the Mandapamdars is optional and voluntary and that the honours conferred by the temple are at the discretion and selection of the temple authorities. In this way an analogy has been attempted to be drawn with the case of Vaidinatha v. Chandrasekara (1889) 9 M.L.J. 356 There the contributions were held to be voluntary and not to have given rise to any prescriptive right. It was observed that if other worshippers wished to subscribe it was open to the trustees to accept their offerings and celebrate the festival on a larger scale. Here by common consent the right in dispute is a right to take an exclusive part in a particular form of worship. The Subordinate Judge has found that it is ' not a matter within the sweet will and pleasure of the temple trustees to allow or not the Mandapamdar to perform it' in other words that it is not a voluntary performance. If this is so, it may be that the plaintiff should properly be treated as holding an office of trust connected with the temple. The learned Advocate General, while arguing that his client had a duty to perform at the festival and was liable to be dismissed, adrnitted that the Courts had no power to enforce specific performance by him. As the plaintiff cannot legally claim an individual right, apart from grant or statute, without submitting to a corresponding obligation, I should be inclined to think that the rendering of his services could be Lgally enforced. I consider it unnecessary to call for a finding whether in fact the right set up by the plaintiff arises out of an office attached to a temple, because that is a case which does not arise out of the pleadings and there is no issue on the point. A right of this kind might also have arisen out of a trust or implied contract between the plaintiff and the trustees.
13. The Subordinate Judge observes that the right to perform a Mandapappadi has long been treated by the people as a civil right and is known to have been made a subject of partition among Hindu coparceners. This observation, coming as it does from a Brahmin Judge who should be well acquainted with the customs of his caste, is entitled to considerable weight. It receives support from the case in Vengamuthu v. Pandaveswara (1983) M.W.N. 289 already referred to, the difference being only that what was there claimed was a public right and what is here claimed is a private and exclusive right.
14. It is true that this civil right has not been traced to a legal origin. But the appellants on their pleadings are clearly not entitled to call upon the plaintiff to prove at this stage how the long established practice originated. The suit was contested on the footing that the family of plaintiff and defendants 1 to 4 possessed a monopoly of performing the Mandapappadi in question. The District Judge observed ' It is common ground between all the parties, the trustees included, that the right to perform the suit Mandapappadi is restricted exclusively to a particular family.' All the defendants who defended the suit took the ground in their written statements that the suit was not maintainable, but none of them explained why it should not be maintained. As between the plaintiff and the defendants 1 to 4 it was inconsistent with the case of the latter that no civil right was in dispute. Both declared that there was an immemorial custom and hereditary right for the ceremony to be performed by one member of their family. The only question was in what order that right devolved and in whom it was now vested. As between the plaintiff and defendants 5 to 9 it was open to the trustees to defend the suit by averring and proving that it was optional and discretionary on their part to allow the Mandapappadi to be performed by one particular person to the exclusion of others. Instead of doing so the defendants 5 to 7 supported the case of the defendants 1 to 4 by stating that the honours in dispute were established by 'long established practice and custom which had been in vogue from time immemorial ' and that ' the right to respond to the, Arulipadu belongs to the senior member then and there present in the temple.' Their pleader did not even argue the question of maintainability of the suit in the original Court. The defendants 8 and 9 were exparte throughout.
15. I consider that the lower Courts were right in holding that this suit is maintainable in a Civil Court and on the merits I consider that the admission in Exhibit I was not conclusive evidence of the title of defendants 1 to 4, there being other evidence to support the finding on issue II. I agree in the modification of the decree proposed by my learned brother as regards the form of the injunction and as regards the amount of damages and costs. The First Court's decree will be amended by adding the words ' Provided that the above said injunctions do continue in force only so long as the plaintiff is willing and ready on his part to perform the said ceremony according to the usage of the said temple ' at the end of paragraph 2 of the decree. In other respects the appeals are dismissed.
16. These are two Second Appeals by defendants 1 to 4 and by defendants 5 to 7 arising from Original Suit No. 35 of 1910 on the file of the Court of the Subordinate Judge of Tuticorin which the plaintiff brought for a declaration that he was exclusively entitled to the right of conducting the Tirupallandu Mandapappadi on the first day of the Pagalpathu festival in the temple of Athinathar Alwar of Alwartirunagiri, paying all the expenses therefor himself and receiving all the honours and emoluments appurtenant to that right; he claimed them by hereditary right enjoyed from time immemorial by the Tirumaligai family according to the custom of the temple; he also prayed for a permanent injunction restraining the defendants 1 to 4 from interfering with his rights and directing defendants 5 to 7 to show him the said honours and also for damages for loss caused to him by the wrongful acts of interference of the defendants at the last festival. Defendants 1 to 4 are the rival claimants to this exclusive right which is said to belong to the Tirumaligai family and defendants 5 to 7 are the trustees of the temple. The lower Courts decreed the plaintiff's suit and gave him the injunctions asked for and awarded him Rs. 500 as damages.
17. The first point taken before us by the learned Vakil for the appellants is that the right alleged on which the plaintiff bases his suit is not a right of a civil nature and therefore the suit is not maintainable. A number of authorities have been cited on either side to show in what classes of cases Courts have held the right to be a civil right and in what classes they have held it to be not a civil right. A reference to those authorities shows that while on the one hand no suit can be maintained for mere religious honours and dignities and for even perquisites when they are not of any real money value but are given more as symbols or emblems of honour or dignity than for their intrinsic value, see Striman Sadagopa v. Kristna Tatachariyar (1889) 9 M.L.J. 356 Sangapa Bin Basilingapa v. Gangapa Bin Niranjapa (1983) M.W.N. 289 Narayan Vithe Parab v. Krishnaji Sadashiv I.L.R. (1908) M. 291, Karuppa v. Kolanthayan I.L.R. (1882) M. 161 Subbaraya Mudaliar v. Vedantachariar (1889) 9 M.L.J. 356 Athan Sadagopa Chariar Swamigal v. Elayavalli Srinivasa Chariar (1983) M.W.N. 289 on the other hand a suit to enforce a claim to an office even though it be a religious one and a suit to enforce a person's right to an act of worship are suits of a civil nature and are cognisable by Civil Courts ; and therefore a suit for any matter appurtenant to such office or act of worship as legally attached thereto and not dependent on the voluntary choice of a third party will also lie even if they be mere honours or perquisites of no value, Section 9 of the Code of Civil Procedure recognises that a suit in which a right to an office is contested is a suit of a civil nature even though the recognition of the right may depend upon the decision of questions as to religious rites or ceremonies. It was held in Mamat Ram Bayan V. Bapu Ram Atai Bura Bhakat I.L.R. (1908) M. 291 that a suit for an office would lie even if no emoluments were attached to it. Similarly where only mere honours and perquisites of no value are attached to an office a suit will lie both for the office and for such honours. See Archakam Srinivasa Dikshatulu v. Udayagiry Anantha Charlu I.L.R. (1882) M. 161 Srinivasa v. Tiruvengada (1916) 3 L.W. 512 Sri Rungachariar v. Rungasami Battachar (1913) 18 I.C. 175 Soma Battachariar v. Thiruvenkatachariar. I.L.R. (1890) M. 293 Of course where the perquisites claimed have a real money value a suit will lie for them as for any other property and the fact that the right is based upon the performance of some religious ceremony cannot effect the nature of the suit. See Narasimma Chariar v. Sri Kristna Tata Chariar (1900) 11 M.L.J. 215 Krishnamma v. Krishnasami I.L.R. (1879) M. 62 and Krishnasami v. Krishnama I.L.R. (1882) M. 818 It is no doubt necessary to show where perquisites are claimed even where they have a money value, that they are claimable as a matter of right and that it is not a matter of voluntary choice with any one else to give them or withhold them; for in that case there will be no legal obligation which can be enforced by suit. See observations in Krishnama v. Krishnasami I.L.R. (1879) M. 62 Krishnasami v. Krishnama I.L.R. (1882) M. 818 and Srinivasa v. Tiruvengada I.L.R. (1888) M. 450. Cases in Tholappala Charlu v. Venkata Charulu I.L.R. (1895) M. 62. : 5 M.L.J. 209 and Chunnu Datt Vyas v. Babu Nandan I.L.R. (1910) All, 527 were cases of this nature where the contributions claimed were voluntary ones and the alleged right claimed was not connected with any temple or other sacred spot. Undoubtedly as pointed out in Srinivasa Thathachariar v. Srinivasa Aiyangar and Srinivasachariar v. Srinivasa Thathachariar (1889) 9 M.L.J. 356 the existence of the office to which the emoluments claimed are said to attach must be proved and so must the connection between the office and the honours and dignities and perquisites claimed be established by clear evidence. See also observations in Athan Sadagopa Chariar Swamigal v. Elayavalli Srinivasa Chariar (1983) M.W.N. 289 and in Sri Rungachariar v. Rungasami Battachar I.L.R. (1908) M. 291
18. The right to an act of worship stands on the same footing as a right to an office ; a person is entitled to enforce it by suit in the same way, see Vengamuthu v. Pandaveswara I.L.R. (1882) M. 161 Kadirvelu Chetty v. Nanjundaiyar (1916) 3 L.W. 512 lyyadurai Gurukkal v. Ramasawmy Gurukkal (1913) 18 I.C. 175 and Venkatachalapati v. Subbarayadu I.L.R. (1890) M. 293; and if any honours or perquisites are attached thereto, it fellows that they can also be claimed under the same conditions as honours attached to religious offices. In Nagiah Bathudu v. Muthacharry (1900) 11 M.L.J. 215 Davies, J. held that the right to worship need not be in a temple but may be even in a street; the learned Chief Justice however decided the case on another point.
19. Bearing these authorities in mind I shall now consider the nature of the right set up by the plaintiff in this suit. The learned Advocate-General argues that the performance of the particular Mandapappadi in suit may be looked upon as the performance of the duties of the office of the Mandapamdar or as an act of worship with certain incidents and emoluments attached thereto and that in either case the suit is of a civil nature.
20. It would seem that during the Pagalpathu festival the idols of Athinathar and Alwars are taken every day, after the Nithiyal or daily worship, to a Mandapam in the temple precincts for special worship there and the stanza beginning with ' Pallandu ' as the commencement of the Tiruvoimozhi Prabhanda Sevakalam is recited. For this purpose the Mandapam has to be decorated with ' Sirappus' and offerings of food etc. have to be prepared and expenses are incurred in connection therewith. There is an 'Aralipadu' to start with to which the Mandapamdar has to reply ' Nayinda Nayinda '. The plaintiff claims to have this right as well as the right to bear all the expenses of the first day of Pagalpathu and in return to get certain honours and emoluments described in the decree schedule, given to him by the trustees as of right according to the recognised usage of the temple.
21. Such being the nature of the right claimed if the plaintiff wanted his right to be treated as a right to an office he should have alleged and given evidence of the existence of such an office. No foundation is laid in the evidence for this nor are there any findings by the lower Courts that there is any such office in this temple. I must therefore disallow the first part of the learned Advocate-General's argument. But I agree with the second part of it and with the lower Courts in thinking that the right claimed here is a right to an act of worship in a particular manner and with particular incidents attached to it. It is clear that such a right is a right of a civil nature. In the case in Vengamuthu v. Pandaveswara I.L.R. (1882) M. 151 the question was as to the right to perform this very kind of ceremony Mandapappadi though the plaintiff there did not claim a special and exclusive right to it. The learned Judges treated it as a right to take part in an act of worship in the temple; and I accept that view.
22. If the right to perform this ceremony is a civil right as I hold, the Civil Court must adjudicate upon any incidents connected with the exercise of that right also. It must therefore be held that the present suit is one for a civil right. It is found that the honours and perquisites claimed have to be given as a matter of right to the Mandapamdar; it is not a matter of choice with the trustees to give them or withhold them as they think fit. The claim for honours etc. not being voluntary ones is also therefore maintainable.
23. It is next argued that no individual worshipper can be allowed in law to acquire an exclusive right to subscribe for any temple ceremony and claim the honours attached to it. In support of this argument reliance was placed upon the ruling in Vaidinatha v. Chandrasekara (1905) 15 M.L.J. 158. Though this question was raised in this suit in the first Court, the Subordinate Judge says it was quietly dropped at the time of the argument. In appeal the District Judge notes 'It is common ground between all the parties, trustees included, that the right to perform the suit Mandapappadi is restricted exclusively to a particular family.' Having admitted the monopoly of the family the defendants can scarcely be permitted to question it again in second appeal unless they satisfy us that the kind of monopoly claimed is one opposed to law and not acquirable by any manner of means. Their learned Vakil draws our attention to the following sentence in the judgment he quoted 'no one and no special body of worshippers can claim the right to subscribe the funds necessary for a particular festival to the exclusion of other worshippers or subscribers.' I think this sentence must be understood with reference to the rest of the judgment and to the facts of the case. The right claimed there was not merely to subscribe for the seventh day festival if the plaintiffs so wished to do but also to exclude every one else including the trustees from raising funds for it. If the plaintiffs did not choose to subscribe, the festival must in consequence stop. This claim would thus interfere with the right of the worshippers to take part in the public worship of the temple at that particular festival which they have a right to do; and therefore such a claim was negatived. The worshippers must no doubt find funds if they want any ceremony performed when the temple lacks funds for it and in such a case the trustees will be bound to receive the contributions from all worshippers willing to subscribe. See Elayalwar Reddiar v. Namberumal Chettiar I.L.R. (1899) M. 298. Except in this sense I do not think it can be said, as the appellants' Vakil argues, that every worshipper has an unlimited right to subscribe for every ceremony in a temple quite apart from the usage of the temple. He may make offerings to the God, but that is a different matter. It is a matter within the discretion of the trustees to make such arrangements as they think fit for the performance of any recognized ceremony in the temple and if in the bona fide and honest exercise of that discretion for the benefit of the temple they arrange to give a permanent and exclusive right to any worshipper to perform any particular ceremony, I do not see any ground why it should be treated as invalid provided it does not lead to the stoppage of the ceremony or to any other injurious consequence to the temple. This discretion of the trustees is recognised both in the case of Vaidinatha v. Chandrasekara (1905) 15 M.L.J. 458 and in the case in Elayalwar Reddiar v. Namberumal Chettiar (1916) 3 L.W. 512 which it follows.
24. It seems to me that in each case the question whether the right put forward to perform any festival exclusively is valid or not should be decided on the facts of the case and the usage of the temple; it cannot be laid down as a general proposition of law that in every case such a right is invalid as argued by the learned Vakil for the appellants. The case in Kadirvelu Chetty v. Nanjundaiyar (1905) 15 M.L.J. 168 is an example of such a right being recognised by this Court. Such rights are well known and recognised in many temples in Southern India ; and where, as in the present case, they are claimed as hereditary rights enjoyed from time immemorial according to the custom of the temple I see no reason why they should not be upheld provided the right of the trustees to perform the festival, in case the man claiming the exclusive right fails to do so, is safeguarded and the interests of the temple do not suffer. A right enjoyed from time immemorial is presumed to have had a legal origin and the person asserting the contrary must prove it. There is nothing in the present case to show it; on the other hand the admission of the parties is in favour of the right. I think therefore the case in Vaidinatha v. Chandrasekara (1905) 15 M.L.J. 168 is clearly distinguishable from the present case on the facts and it is not an authority for invalidating the right claimed by the plaintiff.
25. It has been conceded for the plaintiff before us that if he fails to perform his Mandapappadi in accordance with the usual practice of the temple the trustees may ignore his exclusive right and make other arrangements for its performance; but so long as he is ready and willing and does perform the ceremony, he alone can claim the honours and perquisites. In this view the form of the decree of the First Court should be modified slightly by making it clear that the declaration and injunctions are subject to the condition that plaintiff is ready and willing and does perform the ceremony in question according to the usage of the temple and I agree to the form of modification as proposed by my learned brother.
26. The next point raised was that Exhibit I was misconstrued and that evidence should have been admitted to explain it. I do not think there is any misconstruction by the lower Courts of Exhibit I. The words 'in the order of seniority in the same manner as is done in the Alwar temple ' cannot apply when it is shown by a volume of evidence in the case that the right claimed here is not a right common to both branches of Tirumaligai family, as for example the offices of Tirumalkapu and Adhyapakam are. There is nothing ambiguous in Exhibit I and the evidence of usage in the private temple of the parties was therefore properly excluded.
27. The last point argued is as to damages. They have been awarded under the following 3 heads;
(1) Rs. 50 for loss by waste of articles prepared for the ceremony and for value of the honours and perquisites withheld.
(2) Rs. 50 for expenses in the Magistrate's Court; the laintiff seems to have complained to the Magistrate about the interference with his rights.
(3) Rs. 400 for loss of honour and of spiritual benefit and for mental pain.
28. I am clearly of opinion that the 1st item was properly allowed. As to the 2nd item, damages claimed are too remote ; the loss was really the consequence of the plaintiff's own action in complaining to the Magistrate; it is therefore disallowed. The plaintiff is certainly entitled to some damages under the 3rd head. The quantum of it will ordinarily be a question of fact but in this case the lower Courts have not given any good reason for awarding such a large sum. The learned Advocate General did not attempt to point to any evidence to justify such a large award but left it to us to decide what would be reasonable in the circumstances. I think Rs. 50 will be a fair award. I will therefore reduce the damages to Rs. 100 in all and modify the decree as to declaration and injunction as stated above and subject to the said modifications confirm the decrees of the lower Courts and dismiss the Second Appeals. Parties except defendants 8 and 9 will pay and receive proportionate costs in this Court.