1. The question argued in this appeal is whether the practice that the Archaka should take the whole of the Hundi collections for his own maintenance expenses and for the expenses of the Pooja is an illegal practice opposed to public policy. The first Court, on the authority of Venkataramana Aiyangar v. Kasturiranga Aiyangar : (1916)31MLJ777 thought it was; but the appellate Court has thought that the more recent case Sri Mahant v. Govindacharlu (1934) 68 M.L.J. 295 shows that appropriation by Archakas of a fixed portion of the Hundi collections is not necessarily an illegal practice.
2. Mr. Somayya has taken me through Venkataramana Aiyangar v. Kasturiranga Aiyangar : (1916)31MLJ777 at some length to try to satisfy me that the facts of that case fully resemble those in the present case; but it would appear that in Venkataramana Aiyangar v. Kasturiranga Aiyangar : (1916)31MLJ777 the Archakas at no time claimed a right to appropriate the Hundi collections except on the ground that such an appropriation was necessary for the maintenance and proper performance of the ceremonies connected with the temple. It also appears in that case that the Government, apparently then representing the temple, interfered from time to time with the appropriation of the collections by the Archakas and only allowed them to enjoy it because they were satisfied that it was necessary in the interests of the proper performance of the ceremonies of the temple. The agreement which subsequently came up for consideration in that case was one entered into between the trustee and the Archakas whereby the Archakas were to appropriate the collections and give to the temple the sum of Rs. 300. It was held that the trustee had no authority to make a permanent arrangement of this kind and that it was a breach of trust to do so. In Sri Mahant v. Govindacharlu (1934) 68 M.L.J. 295 there was also a practice whereby the Archakas appropriated a fraction of the Hundi collections, and out of that sum they had to maintain themselves and perform certain poojas and other ceremonies. Varadachariar, J., held that such a practice was not repugnant to Hindu ideas and that when the origin of the practice was unknown, it must be assumed to be a legal one. The presumption of a legal origin is a rule of convenience; for if there were no such presumption, it would be impossible in many cases to decide what the rights of parties were. Their Lordships of the Privy Council, in considering this matter in Magniram Sitaram v. Kasturbhai Manibhai (1921) 42 M.L.J. 501: L.R. 49 IndAp 54: I.L.R. 46 Bom. 481 and Mahammad Mazaffar-al-Musavi v. Jabeda Khatun (1930) 58 M.L.J. 641: L.R 57 IndAp 125: I.L.R. 57 Cal. 1293 recognised the propriety of applying this rule, provided that the presumption of legal origin was practicable and reasonably capable of being presumed without doing violence to the probabilities of the case. In the case before us, nothing is known of the origin of this practice, and no evidence exists of any agreement entered into between the trustees and the Archakas permitting the Archakas to appropriate this money. All that we know is that the practice has been in existence as long as witnesses can remember and no instance has been given of any occasion on which the Archakas have not appropriated this money. It cannot be said that the presumption of a legal origin to the practice is unreasonable and against the probabilities arising from the evidence. The lower Court was therefore justified in presuming a legal origin.
3. It may be mentioned, although the matter is not of any great importance, that the Archaka does not claim, every thing that is put in the Hundi; but only the cash. Certain saffron coloured pieces of cloth with coins tied in them, etc. and gold and silver articles are also placed in the Hundi; and the Archaka does not deny that this property belongs to the temple.
4. There is only one exhibit in the case that has any bearing on the case, and that is Ex. K. It bears the date 10th December, 1909 and purports to be a patti signed by one Balaji Rao, presumably the manager of the temple for that year, setting out the expenses incurred for the payment of servants for the necessary services of the temple. In accordance with that patti the Government made a grant of Rs. 81-11-2; but it does not appear that it was expected that the money should be spent in precisely the manner set out in Ex. K. Ex. K purports to be rather an estimate of the expenses that had been met by the State before the British Government assumed power, or, at any rate, the expenses of the temple which the present Government felt it their duty to meet. Ex. K shows that the maintenance of the Archakas was estimated at Rs. 17-12-5, and certain other sums were allowed for the performance of the daily pooja and so on. Presumably, the claim of the Archakas is that they should be entitled to whatever sum is placed in the hundi, subject to the minimum of this sum granted by the Government in accordance with this patti. I do not think there is anything in this patti which would limit the right of the Archakas to Rs. 17-12-5 remuneration; and in fact Mr. Somayya has fairly conceded that if the Archaka is not entitled to the Hundi collections further relief would have to be granted to him.
5. I therefore agree with the lower appellate Court and dismiss this appeal with costs.