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Chitti Babu Mudaliar Vs. A. Venkatasubbu Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad264
AppellantChitti Babu Mudaliar
RespondentA. Venkatasubbu Mudaliar and anr.
Cases ReferredThirumalai Alwar Ayyangar v. Srinivasachariar
Excerpt:
- - the learned city civil judge also says that he was also good enough to concede that the temple could not compel him by action or otherwise to come on the aroodra festival day to perform the festival or to do any function or even take any part of it......that he does not claim any right of property in the temple or any office. the learned city civil judge, in the course of the case, asked the plaintiff's counsel:whether his client was bound to go to the temple in connexion with the annual aroodra festival and perform the ceremony,3. he frankly said that his client was not so bound. the learned city civil judge also says that he was also good enough to concede that the temple could not compel him by action or otherwise to come on the aroodra festival day to perform the festival or to do any function or even take any part of it. all that he claims is that should he happen to go, the temple authoritiesare compellable to put into his hands votive offerings and that when he has presented the offerings they must again confer upon him.....
Judgment:

Madhavan Nair, J.

1. The plaintiff is the appellant. This is an appeal against the decree passed by the learned City Civil Court Judge in O.S. No. 167 of 1929 dismissing the plaintiff's suit on the ground that a suit of the nature brought by him is not maintainable under Section 9, Civil P.C. The plaintiff's suit was for a declaration that the right to conduct Aroodra Utsavam at the Sree Kabalee swarar temple at Mylapore is vested in his family and that he being the Senior member of it is solely entitled to conduct the said Utsavam as Ubayakar or Kattalaidar. This is stated in para. 3 of the plaint. In para. 5 it is stated that the trustees of the temple, the defendants, denied the right of the plaintiffs and of the members of his family and denied to them the rights and honours appertaining to the Utsavam and the conduct thereof. It was conceded before the learned City Civil Court Judge that in so far as the suit was one for mere 'honours,' it does not lie. This, concession having been made, what is now argued before me is that the plaintiff is entitled to get a declaration of his right to conduct the Utsavam and that the lower Court was wrong in having; held that such a suit will not lie. If more concessions than what I have just referred to had not been made before the lower Court, it may probably be said with some force that the plaintiff's right, is not barred by Section 9, Civil P. C, though the nature of the right disclosed by the learned Counsel-no evidence having been, taken in the case-is, I must say, somewhat novel.

2. It is said that the fund for conducting the Utsavam is under the control of the trustees as the result of an endowment created by an ancestor of the plaintiff, that what the plaintiff is entitled to do is either to conduct the Utsavam after getting the interest of the fund from the trustees or by asking the trustees to conduct it under his own supervision. It is also said that he need not be present when the Utsavam ceremony is being held but he may send a substitute to supervise it. Assuming that a suit of the nature herein described will lie under Section 9, Civil P. C, the various concessions made by the counsel which I shall refer to presently make it impossible to hold that Section 9 will not be a bar to the suit. The plaintiff conceded that he does not claim any right of property in the temple or any office. The learned City Civil Judge, in the course of the case, asked the plaintiff's counsel:

whether his client was bound to go to the temple in connexion with the annual Aroodra festival and perform the ceremony,

3. He frankly said that his client was not so bound. The learned City Civil Judge also says that he was also good enough to concede that the temple could not compel him by action or otherwise to come on the Aroodra festival day to perform the festival or to do any function or even take any part of it. All that he claims is that should he happen to go, the temple authorities

are compellable to put into his hands votive offerings and that when he has presented the offerings they must again confer upon him the usual honours,

4. This would show as the learned Judge remarks 'that there is no mutuality of obligations.' According to the decisions no doubt a parson may have a right to institute a suit for a declaration that he is entitled to perform the duties of an office, to conduct a Mandahappady, for instance, as in Thirumalai Alwar Ayyangar v. Srinivasachariar (1916) 36 1 C 568. But that is not the case which is presented before the Court by the plaintiff having regard to the various concessions made by his counsel. To constitute an office I think it will be essential to have some duties attached to it which the office holder will be under a legal obligation to perform, the non-performance of which will be visited with penalties; but that is not the case with respect to the claim made by the plaintiff. As already observed nobody can compel him to perform the Utsavam or even to be present at the place. Shortly stated what the plaintiff says is, if he happens to go to the temple at the time of the ceremony the usual honours must be conferred upon him. As the learned City Civil Judge remarks there is evidently no mutuality about the obligations. The nature of the plaintiff's claim has been considerably modified as a result of the concessions made by him in reply to questions put by the Court. In so far as the suit is a claim for mere honours it will not lie and though it may be described as a suit for a declaration of the plaintiff's right to conduct an Utsavam, having regard to the fact that he is under no obligation to perform any particular function, it cannot be said that he has any rights which can be enforced against the temple. This being the true nature of the claim set out in the plaint, I agree with the learned City Civil Judge that the plaintiff's suit is not maintainable. I would therefore dismiss this appeal with costs.


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