1. In 1917, one Narayana Bharati alias Kappiyur Swamiyar filed a suit as Udama of the Pudukode Devaswom against certain Muhammadans for declaration and injunction in respect of a site. The matter went up on appeal before the District Court of South Malabar and was decided against the Devaswom. A Second Appeal had to be filed. On the ground that Narayana Bharati had ceased to be the head of the Devaswom and that he himself became its head, one Parameswara Bharati alias Azhakapra Swamiyar filed the Second Appeal. He was asked to state how his right accrued. He then filed Civil Miscellaneous Petition No. 2153 of 1922, dated 25th August, 1922, supported by an affidavit. In this affidavit it was alleged that the suit properties belonged to Pudukode Devaswom.
2. 'The said Devaswom and all properties belonging thereto are appurtenant to and form part of the endowment of the Naduvil Madam situated at Trichur, Cochin State, and, as such, the head and trustee of the Naduvil Madam for the time being, is the Udama and manager of the Pudukode Devaswom.' The Cochin Government, acting under Regulation 1 of 1081(M. E.)dismissed Narayana Bharati by its proceedings, dated 9th March, 1922, from the office of the said Naduvil Madam and appointed by the same proceedings the petitioner as head and trustee of the said Madam. The affidavit also alleged that the said Narayana Bharati had been of unsound mind for nearly one year; but this ground has since been abandoned and need not be referred to again. A counter-affidavit and reply affidavits were filed and our brothers (Odgers and Hughes, JJ.) called for a finding on the questions raised by these affidavits which are stated thus: 'Whether the Pudukode Devaswom in British India is appurtenant to and forms part of the institution of Naduvil Madam, Trichur, Cochin State, and whether the trusteeship of Madam and the Pudukode Devaswom has devolved on Azhakapra Swamiyar?' The District Judge, South Malabar, has sent up his findings, and objections have been filed by the respondent (Narayana Bharati).
3. The learned Judge in the course of the finding has said 'Exhibit 11 series are accounts kept for the Devaswom at the Mutt head office in which two serial numbers are given, one for the Devaswom and one for the Mutt. The temple accounts were kept separate from the Mutt accounts as evidenced by Exhibits 14, 16, 18 19 series. . . . No doubt, it is treated as a separate endowment, and no one has ever suggested that its property or income is mixed indiscriminately with that of the Mutt.' But he also said 'In the light of this evidence, it is impossible for the counter-petitioner to contend that the Devaswom is independent of the Mutt.' Finally he stated his finding thus: 'I find that Pudukode Devaswom in British India is appurtenant to Naduvil Mutt in Trichur in this sense that the head of the Naduvil Mutt has always acted as manager or trustee of the Devaswom.'
4. Mr. S. Srinivasa Aiyangar who appeared for Parameswara Bharati has admitted before us that the two are entirely independent institutions and the endowments are separate and the Pudukode Devaswom is appurtenant to the Naduvil Madam only in the sense that the succession to Pudukode Devaswom is dependant on that to the Madam and in no other. His language is 'for purpose of succession only, Pudukode is dependent.' This Very fair admission of Mr. Srinivasa Aiyangar reduces the points for determination to only one, viz., what are the rules regulating the headship of Pudukode Devaswom? How is it vacated and how is a vacancy filled up? Apart from such rules of succession, the Pudukode Devaswom is not appurtenant to the Naduvii Madam.
5. Pudukode Devaswom is a public temple in British territory. It is not a private institution. It does not belong to any private individual or to any other institution--not even the Naduvil Madam. This is clear after the admission mentioned above. The Naduvil Madam is a Mutt at Trichur, Cochin. Both institutions are governed by their respective usages and, apart from usage, the law governing such institutions in the respective territories. In the present case, we are not concerned directly with Naduvil Madam. But we have to determine the usage regulating the Pudukode Devaswom [Gossami Sri Gridharji v. Romanlalji Gossami ILR (1889) C 3 (PC) ] and if, for the purpose of determining this question, we have to look to the rules or law regulating Naduvil Mutt, such rules or law will have to be adverted to only to that extent.
6. Now, let us turn to the history of the Pudukode Devaswom. We do not know when, by whom and subject to what regulations it was founded. So far as we know, its history begins in 1843. Exhibits I to V show that Arur Thirumumbil was the head of Naduvil Mutt and also manager of the Pudukode Devaswom. Exhibits VI to IX show that Vishnu Bharati alias Naduvath Swamiyar was the head of the Mutt and Devaswom in 1846. Exhibit KK shows that he was succeeded by Manjanpatta Swamiyar and Exhibit JJ shows that Hariswara was the Swami in 1880. Pakaravur Subramania Swamiyar managed both the institutions from 1883 to 1892. He was succeeded by Thaikat Swami whose regime covers the period of 1892--1895. Pakaravur Vishnu Bharati was head from 1895 to 1915. In his time there was an important litigation. His junior Swami sought to have him removed from the headship (Exhibit T). He was succeeded by the respondent (Kappiyur Narayana Bharati) in 1915. In 1916 there was litigation between Pallipat Rama Bharati and him (Exhibit 24). All these Swamiyars were heads both of the Naduvil Mutt and of the Pudukode Devaswom. As each Swami died, the senior of the Swamiyars initiated by him succeeded to the two offices. These are the facts from which any rule or rules (by way of usage) regarding the Devaswom have to be inferred.
7. One rule of succession that can be easily inferred is that, if the head of the Pudukode Devaswom dies and there is a vacancy, the head of the Naduvil Mutt will succeed to the headship of the Devaswom also. By the very nature of the rule, the vacancy will be simultaneous in both the institutions and the same person succeeds to both. He first succeeds to the Naduvil Mutt and by reason of his position as head of the Mutt and the simultaneous vacancy in the headship of the Pttdukode Devaswom, he succeeds to the latter also. So much is admitted by both parties. But this is not enough to solve the problem before us. In the case before us there is no vacancy by death. There is a vacancy in the case of the Mutt by dismissal by a foreign Government. Does this vacancy involve a simultaneous vacancy in the headship of the Devaswom? Unless there is a vacancy, there is no need to look for a successor. The petitioner's contention is that the usage regulating the Devaswom not only involves that the successor in the headship of the Mutt (on the death of the prior incumbent causing a vacancy in respect of the headship of both the institutions) also succeeds to the headship of the Devaswom, but also that the loss of the headship of the Mutt by a cause other than death involves the divesting of the headship of the Devaswom. Once the divesting is found, the further succession can be easily ascertained. But what is the evidence for such usage as will involve the divesting of the headship of the Devaswom as a consequence of the dismissal from the headship of the Mutt. There is no such evidence nor can there be such. As I have already pointed out, the only history available to us is from 1843, i. e., a period of eighty years. During this period, no such case (has occurred. It is impossible to hold that the usage proved, viz., one relating to succession on vacancy covers the case where there is no vacancy (strictly) and includes the proposition required by the petitioner that the loss of the headship of the Mutt involves a forfeiture of the headship of the Devaswom. The proposition or rule is penal in its nature and must be strictly proved. There is no such proof. On this ground we hold that the respondent (Narayana Bharati) has not lost the headship of the Devaswom as a result of the loss of the headship of this Mutt, and he is the proper person to continue the Second Appeal. In this view, the further questions debated by the learned vakils need not be considered.
8. One such question raised by Mr. Ramachandra Aiyar is that the removal from the secular headship does not necessarily involve the removal from the spiritual headship. The Cochin Government has removed his client only from the management. No human power can remove him from the spiritual headship. This may be so. But the further difficulty in the application of the argument is what is the kind of headship (spiritual or secular) that qualified the head of the Mutt for the headship of the Devaswom?. This itself depends on usage and we have no materials to answer the question properly. Again, while conceding that a distinction may exist between the management and spiritual headship' (see Arunachellam Chetty and Ors. v. Venkatachalapathi Guruswamigal ILR (1919)M 253 : 1919 37 MLJ 460 and Nataraja Thambiran v. Kailasam Pillai (1920) ILR 44 M 283 : 1920 39 MLJ 98 in certain cases, it is doubtful whether, when the office is only one, we can split it up into two.
9. A second point raised by Mr. Ramachandra Aiyar is that we can go into the validity of the order of the Cochin Government in so far as it affects an institution in British territory and if we find it not justified, refuse to recognize it in so far as it is sought to be applied to the Pudukode Devaswom. This contention raises interesting questions of Private International Law and has been ably argued on both sides. But, in the view taken by us, it need not be pursued.
10. I agree with the order proposed by my learned brother-regarding substitution.
11. I agree that whatever may be the exact effect of the order of the Cochin Government on the position and rights of Narayana Bharati in the Naduvil Mutt, it has not-been proved that according to the usage of the Pudukode Devaswom he has been divested of the office of trustee of that Devaswom. He must therefore be recognised as trustee of the Devaswom entitled to conduct litigation on its behalf. This petition must be dismissed with costs.
12. Respondent, Narayana Bharati, will be substituted for petitioner as appellant in Second Appeal No. 1080 of 1922.