Venkataramana Rao, J.
1. The substantial question for decision in this second appeal relates to the claim by the trustees of Jagannadhaswami temple at Udayagiri, Ramagiri Taluk, in the Agency Tracts of the Ganjam District, to recover four garces of paddy annually for the temple from the Mandolo or the Muttadar of Titisingi Mutta in the same taluk. The said mutta is held by an officer called the Muttadar who, according to the usage, is appointed by the Government, the office being recognized more or less hereditary. The officer is remunerated by the emoluments derived mainly from the income of Titisingi Mutta. The claim is thus laid in the plaint:
The plaintiff and defendant 2, as well as their ancestors who are Patros of Ramagiri-Udayagiri Mutta, used to collect from Balaji Patro Mondolo, defendant 1, as well as from his ancestors of the Titisingi Mutta, four garces of paddy for the Amrutha Monohi (daily offerings) of the said deity . . . Balaji Mondolo who at present holds the office of Mondolo of the Titisingi Mutta of this taluk has, as per records, to deliver on the day of Pongal every year four garces of paddy a year with the measure current in the country . . . This had been going on from generation to generation.
2. Defendant 1 in his written statement filed on 17th July 1925 stated that he was either bound to pay Rs. 300 in cash to the zamindar of Bodokimedi or four garces of paddy, and as he had to pay Rs. 300 in cash to the said zamindar he was not bound to give four garces of paddy. In the written statement filed on 10th September 1925 he stated that the payment was purely voluntary and could not support a legal claim, that the income derived from Titisingi Mutta formed the emoluments of the office of Mutta head and was inalienable and therefore any claim for payment out of such emoluments was unenforceable in a Court of law. The defendants adduced no evidence, either oral or documentary, but the plaintiff examined a number of witnesses and also filed certain documents. The oral evidence was believed by the Courts below. The facts that can be said to have been established from the oral testimony are that the main source of income for the maintenance of the deity is four garces of paddy paid annually by the Muttadar of Titisingi Mutta, that the said payment has been made from a time long before living memory and, at any rate, by the defendants' family ever since their connection with the Titisingi Mutta, that whoever held the office of the Muttadar of Titisingi Mutta had to make this payment to the trustees of the temple, that the ryots used annually to come and deliver the said four garces of paddy and that the same has been utilized for the daily offerings to God and for the maintenance of the temple servants. Defendant 1 also admitted that this was made by virtue of a custom which has been long prevalent. In his letter to the Deputy Tahsildar dated 18th January 1925, he made the following statement:
We being a Savara tribe my father and grandfather had been making payment according to former custom which has been in vogue till this day, but I consider that I am not liable to make payment.
3. It is also in evidence that the Muttadar of Titisingi Mutta, in addition to these four garces of paddy was making a cash payment of Rs. 300 to the zamindar of Bodokimedi. This is also evidenced by what is called Taylor's Memoir which was a record of mamools prepared in 1891 by the then Collector of the District, and in this it is stated that the Patro (Muttadar) pays four garces to Udayagiri Mutta or temple annually. There is also another document which is filed in the case, Ex. D, which purports to be a takid register maintained by the zamindar of Bodokimedi, wherein it is stated that the Muttadar of Titisingi Mutta has to pay Rs. 300 to the zamindar and that he should also deliver paddy necessary for the Sri Jagannadhaswami temple in accordance with the custom. Both the relevancy and admissibility of this document has been disputed in the Courts below, and the same objection has been repeated on behalf of defendant 1 by his learned counsel Mr. Venkatachariar before me. I shall assume the objection to be valid and proceed to deal with the ease on the said footing.
4. The Special Assistant Agent, Balliguda Division, who originally tried the case, came to the conclusion that this paddy had been paid annually to the trustees by the Muttadars of Titisingi Mutta even though they had no belief in the worship of Jagannadhaswami and that the payment could not be said to have been voluntary. When his decision had been carried in appeal, the Agency Additional District Judge, Mr. Arndt, was of the opinion that mamools could be fixed only by the Agent, that interference by Civil Courts was considered undesirable, that from the fact that payment had been made for a very long time the Court could not arrogate to itself the power that was vested in the. Agent alone of deciding whether the continuance of the payment is desirable, that legality can be given to the obligation for the payment of mamools only by the executive, that though the payment cannot be said to be voluntary, no legal origin can be presumed from the evidence of longstanding custom; and he gave time to the plaintiff's vakil to produce a certificate from the Agent recognizing the said mamool. The necessary certificate was obtained by the plaintiff and the matter again came up before Mr. Galletti, the Agent to the Governor in Ganjam, who came to the conclusion that such customary payments are nob based on contract but on status which is ascertained or determined from time to time by the executive power, and that since the certificate recognizing the payment had been filed showing that the mamool is due by defendant 1 to the trustees, he confirmed the decision of the Special Assistant Agent. A second appeal was filed against that decree in the High Court which originally came on before Phillips and Odgers, JJ. who called for a report from the Agent as to the grounds for his holding that a certificate by the executive authority is conclusive before a Civil Court, In answer to that, the Agent referred to Taylor's Memoir. After the receipt of that information, the matter came up before Ramesam, J. who held that Civil Courts have got to find the legal basis on which the defendant's liability rested and that they could not regard the Agent's certificate as conclusive. He then remarked thus:
The defendant Mandolo holds his office of Mutta on some kind of tenure under the zamindar of Peddakimedi. It is said that he also pays Rs. 300 as kattubadi to the zamindar of Peddakimedi. Whether there are other incidents of tenure under which he holds the Mandolo office. I am not able to say. It is for the lower Court to enquire into all the incidents of defendant's tenure and to find whether any legal basis for the liability exists.
5. He also permitted Taylor's Memoir to be admitted in evidence which was excluded by the Special Assistant Agent who tried the ease. On remand by the High Court the matter came up before Mr. Vellodi, the Agent to the Governor in Ganjam. On the evidence he held that it was the practice for Tittisingi Mutta to pay the four garces of paddy for the upkeep of the temple. He further held that Taylor's Memoir, though not an official authority, has been looked upon as a book of reference whenever disputes arose regarding the question of mamools and that it has always been the practice to me that as far as possible these mamools as they are found in Taylor's Memoir are enforced. He also took the view that the administration of mamools in the Agency has been a matter entirely for the executive to undertake, and endorsed the opinion of Mr. Arndt that legality can bo given to the obligation for the payment of mamools only by the executive, but no presumption should be made that it was made voluntarily. He finally held that from the mere fact of a longstanding payment he could not infer a legal obligation to pay the same and concluded by saying that the payment was purely a voluntary one and dismissed the suit. It is against this decision that the second appeal has been preferred.
6. The question for decision therefore is whether on the facts established the payment was voluntary or whether the plain. tiff could enforce the payment as a matter of legal right. Before deciding this, I may at the outset state that there is nothing in the evidence to warrant the observations of the learned Judge in the Court below that the administration of mamools in the Agency is a matter entirely for the executive to undertake and that legality can be given to the obligation for such payment only by the executive. He says that a study of the question convinced him of the fact, but it was his duty to place all the materials upon which his opinion was based, and in the absence of such evidence, no Court can recognize this; it is this view that seems to have coloured the learned Judge's conclusion on the matter. The origin of this payment is unknown save that this custom has existed beyond the time of living memory. Where a customary payment has been made for a long series of years, the presumption generally is that payment was not made voluntarily or out of generosity. It is open to the Courts to infer a legal origin for such a payment where it is legally possible. What Mr. Venkatachariar contends is that the said presumption is not made in oases of payments made towards charity and that in cases of landlord and tenant a cess paid as and by way of contributions for repair and maintenance of a temple was held not obligatory on the tenant and was considered to be a voluntary payment. In Siriparapu Ramanna v. Mallikarjuna Prasada Nayudu (1894) 17 Mad 43, one of the cases relied on by him, the fee claimed by the landlord was the fee payable to Sivaganga goddess and it was observed by a. Bench consisting of Muthuswami Iyer and Best, JJ. thus:
A duty to contribute to the expense of a temple is not an ordinary incident of the relation of landlord and tenant, nor has it any connexion with the jirayati tenure on which the ryot holds his land. Prima facie, the contribution is voluntary, and unless the fee is shown to be a charge on the land it cannot be treated as a payment which the zamindar can legally compel the ryot to make.
7. This case seems to indicate that if the fee is an incident of the tenure, or is shown to be a charge on the land, it can be levied. The same view was taken in Bamalingam Chettiar v. Bamaswami Aiyan : (1903)13MLJ379 . In Vadamalai Thiruvanatha Savuga Pandia Thevar v. Sankaramoorthi Naidu AIR 1919 Mad 535 Kumaraswami Sastri, J. observed thus:
Where the cesses are in their nature unconnected with the object for which land is let, they can only be claimed by the landlord under a contract between him and ryots supported by consideration or under a usage for which a legal origin is either proved or presumed from the nature of the case and long course of payments.
8. Thus it will be seen that even though the payment is one unconnected with the use or nature of the holding, still it can be upheld on the ground of usage if a legal origin can be proved or presumed. In this case therefore, it has to be considered whether a legal origin can be presumed for the customary payments of the four garces of paddy. In the first place this payment is not made by a tenant to a landlord. What appears from the facts already established is that whoever holds the office of Muttadar of Titisingi Mutta was paying four garces of paddy to the trustees of the temple direct. Though there is not direct evidence in the case, the fact of payment in kind seems to suggest that it was to be paid out of the produce of Titisingi Mutta which formed the emoluments of the office of the muttadar: see also the plea of para. 3 of the written statement filed on 10th September 1925. From the evidence it appears that it is the practice for the ryots of Titisingi Mutta to measure and deliver this paddy, and Ex. A, which is a receipt for the delivery of paddy, shows that it relates to the appraisement of the crop of the year 1922, which seems to suggest that the payment was intended to be made from and out of the produce of the Mutta. It is well-known that Hindu Sovereigns in ancient days made similar grants of annuity to Hindu temples for their upkeep and when payment is intended or directed to be made from and out of the produce, it is held to be a charge and such charges are not unknown to Hindu law. There is also the significant fact in this case that the Savaras, to which caste defendant 1 belongs, do not believe in the worship of the Hindu deities and therefore, when such a payment is made by one who is not accustomed to worship them and therefore cannot be said to have been done as an act of piety, it must be presumed that there was some reason which obliged a person like the Muttadar of Titisingi Mutta, a non-worshipper, to make the payment. The presumption of a voluntary payment which arises in the case of an ordinary worshipper would not arise in this case. As it is established from the evidence that whoever is the office-holder makes this customary payment, it must be doomed that the payment is one which attaches to the Mutta. It can therefore bo inferred in the circumstances of this case that this payment is payable virtute tenures. I am therefore inclined to hold that defendant 1 is under a legal obligation to make the said payment by virtue of his holding the office of mutta and the plaintiff is entitled to claim the same. In the result the decree of the lower Appellate Court is reversed and that of the Special Assistant Agent restored with costs. (Leave refused).