1. I have had the great advantages of reading the judgment which my learned colleague has prepared and will now deliver, and I accept his conclusion and agree in the decree and the order as to costs which he proposes to make.
2. While the defendants have not adduced evidence proving that any public urani or drinking water tank such as the niravi in dispute has been reserved for the use of the higher castes alone, the plaintiffs have shown that in some villages in the vicinity of Kalloorani, there are wells which are used by Shanars as well as higher castes. This renders it the less difficult to reject the defendants' contention that the niravi and the well in its bed have been reserved for the higher castes, and the disputes, which have before the present suit resulted in the intervention of the Magistrates, do not clearly make out an assertion by the higher castes of their right to exclude the Shanars except when attempting to bathe, on occasions of funerals, when, it is not, I think, denied, special impurities are conceived to attach to the bathers.
3. Though the parties have not separated niravi and the well outside it in their pleadings and have dealt with both as though they are subject to the same condition, in regard to the rights of different castes to make use of the water, there is strong evidence that the well outside the tank has been reserved for castes higher than the Shanars, and the fact that both sides have tried to get more than is their due should not prevent us from making a decree in accordance with the evidence.
Sadasiva Aiyar, J.
4. The plaintiffs are appellants. The suit was brought by seven Shanar residents of Kalloorani village in the Ramnad zenindari as representing all the Shanar community (see paragraph. 14 of the plaint) against all other Hindu caste people for the following reliefs:
(a1) A declaration that the Shanars (or Nadars,) are entitled to the use of a tank (Niravi) about 150 feet by 150 feet called Alagiri Naiker's tank in the said village;
(a2) that the Shanars are entitled to use the well situated within the tank; and
(a3) that they are entitled to use a second well situated close to and to the south-east of the said tank; and
(b) a permanent injunction against other caste people obstructing the Nadar caste people in using the tank and the two wells.
5. Reliefs al, a2 and a3 are joined together as one relief in the plaint. The rights to the use of the tank and the two wells are not kept distinct in the pleadings. In several portions of the evidence, the well outside the tank-bed is emphasized as 'the suit well' while the tank and the well within it are dealt with together as 'niravi' tank. The outside well is distinctly the more important well as it does not fail even in years of drought and contains good drinking water.
6. The 14 defendants impleaded in the suit are some of the high caste residents of the village (one being a Brahmin and the others being Mudaliars, Pillais, Maravars, etc.). Their principal contention was that the tank and the two wells were dedicated for the use of the castes higher than the Nadars and that the Nadars have, therefore, no right to use the same for any purposes. The learned District Judge in paragraph 6 of his judgment formulated the point, he had to decide, as follows: 'Whether the Nadars are entitled to the use of the plaint niravi and well for drawing water for drinking purposes and for the use of their cattle and also for their use in connection with religious ceremonies.' He decided the question in the negative and dismissed the plaintiffs' suit. Hence this appeal.
7. A few preliminary words as to the caste status of the plaintiffs' community may not be out of place and I shall use the language of the Judges who decided the well-known Kamudi cases Sankaralinga Nadan v. Raja Rajeswara Dorai 10 Bom. L.R. 781; 18 M.L.J. 387; 35 I.A. 176: 'The Shanars, as a class, have, from time immemorial, been devoted to the cultivation of the palmyra palm and to the collection of its juice and the manufacture of liquor from it. Their own local traditions connect them with the toddy-drawers of Ceylon whence the Tiyans, or toddy-drawers of the West Coast, are also supposed to have immigrated; there are no grounds whatever for regarding them as of Aryan origin. Their worship was a sort of demonology, and their position, in general social estimation, appears to have been just above Pallas, Pariahs and Chucklies (who are on all hands regarded as unclean and prohibited from the use of Hindu temples), and below that of Vellalas, Maravars and other cultivating castes usually classed as Sudras, and admittedly free to worship in the Hindu temples. In process of time, many of the Shanars took to cultivation, trade and money-lending, and to-day there is a numerous and prosperous body of Shanars, who have no immediate concern with the immemorial calling of their caste. In many villages, they own much of the land and monopolies the bulk of the trade and wealth. With the increase of wealth, they have, not unnaturally, sought for social recognition and to be treated on a footing of equality in religious matters. In a few individual cases in Tanjore and other Districts away from Madura, they appear to have, to some extent, succeeded, but the general attempt of the caste to force itself to an equality with the better castes in social, and religious matters, has been fiercely resisted in the southern Districts and especially in Madura, where serious rioting and loss of life have resulted. Their status, as above stated, is abundantly borne out by all the best authorities who have written on the subject. No doubt, many of the Shanars have abandoned their caste occupation and have won for themselves by education, industry and frugality, respectable positions as traders and merchants and even as Vakils and clerks, and it is natural to feel sympathy for their efforts to obtain social recognition and to rise to what is regarded as a higher form of religious worship, but such sympathy will not be increased by unreasonable and unfounded pretensions, and in their effort to rise the Shanars must not invade the established rights of other castes. They have temples of their own, and are numerous enough and strong enough in wealth and education to rise along their own lines, and without appropriating the institutions or infringing the rights of others, and in so doing they will have the sympathy of all right-minded men, and, if necessary, the protection of the Courts.'
8. On this last question of the protection of the Courts, I feel impelled to make a few observations. Speaking for myself, I think that while the function of Courts is, no doubt, 'to ascertain, to compare, to explain and ratify' the statute and customary and the common laws and not to create laws, Courts could not be wholly deprived of the power of moving slowly with the better sense of the Hindu community which is changing its customs for the better in accordance with the dictates of its authoritative ancient religious texts. I have considered this matter briefly in the case of Guddati Reddi Obala v. Ganapati Kandana (1912) M.W.N. 1138; 23 M.L.J. 493; 12 M.L.T. 467; 17 Ind. Cas. 422. Even in England, 'the whole of the rules of equity and nine-tenths of the rules of common law, have, in fact, been made by the Judges.' Mellish, L.J. in Allen v. Jackson (1876) 1 Ch. D. 399 ; 45 L.J. Ch. 310; 33 L.T. 713; 24 W.R. 306. The Courts and the Legislature need not, surely, be as unprogressive 'as the inert mass of the lower strata of society 'though they need not advance with as much rapidity as' the active and intelligent minds' in the community who represent and create opinion.' In the treatment of the Nadar community by the castes alleged to be of higher caste status, there can be no doubt that Hindu custom is slowly changing for the better, and while Courts should not interfere with customs which have crystallized and become very rigid, they may well refuse to recognise usages which had lost their original binding force and which are sought to be revitalised by the uprising of a factious or sectarian spirit in particular restricted areas. In respect of the treatment of the Nadar community, the custom varies in a perceptible, though not in a very wide, manner, in different localities in the Presidency. Even in the same District, the custom obtaining in villages is certainly more rigid than the custom obtaining in large towns. The custom obtaining in places where the Nadars have mostly dropped their usual caste occupation is again naturally more liberal towards them. Even in villages, if there is practically only a single biggood water well and the higher caste inhabitants are in a great minority, that big well is used by all castes indiscriminately, except the Pallars, Pariahs and Chucklis, whose pots are supplied by the higher caste men or women drawing water for them. 'In some social matters, the Shanars are treated as if there was no distinction between them and the Sudras, while in other respects, their treatment is full of what might almost be termed inconsistencies. But then caste and religious questions cannot be considered in a too rationalistic manner and, as I said before, if a Hindu custom is not too irrational or immoral and has been definitely and clearly established as prevailing for a very long period, Courts should give effect to it. In respect of the question of purity of water, Manu says (Chapter 5, slocka 128): 'Waters are pure as long as a cow goes to quench her thirst in them and... have a good scent, colour and taste'. This is interpreted by the commentators to imply that if the quantity of water in a tank becomes so shallow and confined within such a small area that a cow refuses to quench its thirst therein, the tank becomes impure. On the general question of impurity and purity, the principles of the Shastric precepts are well summarised by Sree Krishna (in his discourse to saint Uddhava) in the 11th Skandam of the Bhagavata, Chapter 21, Slokas 10 and 11, whose purport might be freely rendered as follows: 'Purity and impurity of object depend on several considerations, (a) the qualities of the objects, (b) the pronouncement of holy men where doubt is felt whether an object is pure or impure, (c) the application of purifying and disinfectant substances to the objects, (d) the effects of time disintegrating and purifying impure substances or in rendering impure pure substances and in weakening the effects of death or pollution and of infections and contagions, (e) the consideration whether the object is small or large in quantity, (f) the health and strength of the person to be affected as in the case of pollution not affecting sick men and babies who cannot take baths without injury to health, (g) the knowledge and ignorance of the person to be affected, there being no obligation, for instance, to observe birth pollution, if the birth is not known within 10 days, (h) the poverty or prosperity of the man to be affected, a poor man not being unclean if he wears torn clothes while a rich man would, if he wears such clothes, be treated as unclean, (i) place, (j) conditions of health, strength, danger and necessity.' Sreedhara, the most authoritative commentator on the Bhagavatam, gives as an illustration of the heading (e). 'In respect of waters alleged to be polluted by the bathing of chandalas, etc, the purity or impurity depends on the smallness or largeness of the waters in the receptacles.'
9. Turning now to the particular facts of the case as to the right of the Shanars to use the tank and the two wells in dispute, I shall first dispose of the important well outside of the tank-bed, as the determination of the right to the case of that well does not present much difficulty. The 1st plaintiff himself as plaintiffs' 1st witness, the plaintiffs' 2nd witness and the plaintiffs' 6th witness make the following admissions: 'The Brahmins have a Perumal temple. The other caste people have a Pillayar temple. The water for the Abishekam of the idols in these temples is taken from the plaint well,--The Mariamman idol (worshipped by the Nadars) is taken to the suit well to have water sprinkled on it. If Pallars and Pariahs used the water in this well, we could not use the water in this well for the poojah in the Mariamman kovil. When Manajneer is sprinkled on the Mariamman, the Pandaram takes water from that well. The Pandaram is not a Nadar. He is a man of higher caste.' After this, it seems sufficient to say that the parol evidence on the side of the plaintiffs to the effect that they were allowed till recently, and enjoyed the right, to draw water directly from this well, [though the Pillais and other castes connsider them (Shanars) as a polluting caste], was rightly rejected by the lower Court as false. There is reliable evidence to show that after the Shanars in the year 1906 taking advantage of a magisterial order, drew water directly from this well for a few days, a purificatory ceremony had to be performed before the higher castes could use the well again. The custom of excluding the Shanars and the still lower castes (barbers, washermen, Pallars, Pariahs and Chucklies) from directly drawing water from this outside well must, therefore, be upheld by the Courts, whether it appears quite reasonable to civilized nations or not.
10. As regards the fairly big niravi and the well sunk in it for use during drought seasons, it seems to me that somewhat different considerations arise. I have already referred to the Shastraic writings which make a distinction between rivers, tanks and other receptacles into whose beds, cows could get down to quench their thirst and smaller receptacles which are more easily contaminated and where purification by time, atmospheric conditions, and movement of the water is much more difficult. The defendant's 2nd witness (a Brahmin) says: 'Brahmins will not use water from a well from which Shanars take water. They take water from a full oorani or river from which Shanars also take water. A well is a small thing and it is said to be rendered impure if Pallars, Chuklies, etc., take water from it' I have found it not possible to wholly exclude my own general knowledge (as a Hindu) as to the sentiments of Hindus in these matters in considering the evidence in this case see as regards this, the case of Mulpuru Lakshmaya v. Sri Raja Varadaraja Appa Row (1912) M.W.N. 1193: 23 M.L.J. 624: 12 M.L.T. 561;17 Ind. Cas, 353. A fair sized tank, unless it is attached to a temple or belongs to a Matam or private individual, is usually used by all castes and I do not remember having come across a case restricting a tank excavated on Poramboke land to particular castes alone. Some portions of the oral and documentary evidence in this case relate to a tank attached to a temple in a distant village, to another tank in another village excavated, enjoyed and appropriated by private persons as their exclusive property for more than 25 years, though on Poramboke land, and to a well dug exclusively by higher castes in a third village for their exclusive use. These portions of the evidence are thus of very little relevancy in this case. (See Exhibits 11, 12 and 13 series, etc.). Having regard, again, to the attempts of the Nadars in the Madura and Tinnevelly Districts from at least 1897 (as shown by the history of the Kamudi temple case and by Exhibit 13 in the case) to aggressively establish their right as of equal caste status with Pillais, Mudaliars and Maravars and the counter-attempts of the latter castes to thrust back the Nadars to lower and lower levels, the documentary evidence on both sides, which has come to existence after 1897 and especially during the pendency of this suit, is also of very little weight. [See Exhibits C.D.E.M.N.P.Q.I. Series X and VIII Series. One of the Cadjans in Exhibit VII purports to be earlier than 1897, but it has a suspicious look and it does not give the date in Avani Tharuna when it purports to have been written, while the other Cadjans in Exhibit VIII relating to the year Plava give the dates also, 1st Chitra, 12th Chitra and 1st Vyasi]. The defendant's 3rd witness admits that the Nadars' claim to belong to a higher caste arose even as early as 1880. The parol evidence on both sides as to the use of the tank and the well in it is again of very little value; the defendant's 3rd witness (the Mudali village Munsif whose influence has all along been strenuously directed against the Nadars and whose son-in-law is defence witness No. 4) had the hardihood to deny that the Mariamman is taken for Manjaneer bathing to the bund of the tank and to near the outside well. The defence 10th witness is a dismissed Karnam of the Mudali caste who was bound over to keep the peace during the Shipakasi riots between the Nadars and the higher castes and several of the witnesses on the defendant's side have similarly taken active part in opposing the Shanars. While the evidence as to the custom in the neighbouring villages as to the Shanars being allowed to draw water from wells used by the higher castes is, no doubt, relevant and not unimportant, such evidence (See Exhibits O. series) leads me to no definite conclusion; for, as I have already said, the sentiment of the higher castes against the Shanars is not of the same uniformity of harshness in all villages and is modified by the factors as to the well being practically a tank with steps leading into it, the existence of only one drinking water well in a village, as to the well being a deep wide one irrigating a garden and whose water is, therefore continually baled out and purified and so on. Bat there is no evidence on the defendant's side that in any other of the numerous villages to which the evidence relates, a public tank on Poramboke site has ever been reserved for the higher castes alone though in the case of public well, such reservation is not unusual. We have had the evidence recorded in this case as to the custom in the neighbouring villages fully discussed and analyzed before us. The evidence is wholly confined to wells and to private tanks and throws no light on the right, prima facie existing in all castes including Pariahs and Pallars, to the use of a public tank into which cows can walk to quench their thirst. The defence 3rd witness (the village Munsif) himself admits that 'the oorani water is used for drinking as well as for cattle.' Four circumstances were strenuously relied upon by the respondents to negative the Shanars' right to use the oorani water:
(a) The Shanars have got their own oorani (Kalkulam oorani) near their quarters, (b) in 1875, the Village Munsif (Defence witness No. 3) sent report (Exhibit 5) in which he said that the plaint oorani was used by the higher castes, (c) in 1885, the Shanars wanted to bathe in the tank after a death pollution and to take water from the tank to be used in washing the corpse but were prevented from doing so and there was a riot, (d) about 1906, a Shanar household took water for neermalai (bathing of corpse), evidently from the well inside the tank. One Sanga Mudali petitioned the Head Assistant Magistrate who sent the petition for report to the Sub-Magistrate. The latter reported (Exhibit X) that there was a case in 1885 also about this well, that the Nadars had no necessity to use it as they have their own tank and wells near their quarters and that they should be bound over to keep the peace. Though the Head Assistant Magistrate refused to accept the Sub-Magistrate's report recommending that the Shanars should be prohibited from the use of the niravi and the two wells, the respondents rely upon the Sub-Magistrate's report as evidence that the Shanars had no right to use the water of the plaint tank for any purpose.
11. I shall deal shortly with these four points. The Shanars have, no doubt, a tank of their own near their quarter of the village. It is probable, therefore, that unless the water therein dries up (the evidence being to the effect that it holds water for only about six months in the year), they never go near the plaint tank to water their cattle or to fill their pots with water for human consumption. But this cannot deprive them of their common law right to the use of a public tank when it is of not inconsiderable size. As regards the Exhibit V, it appears therefrom that the Revenue Authorities thought it desirable in 1875 (See Exhibit IV) to get a list of tanks, Kanmois (big tanks) and wells in all the villages. They wanted information only as to (a) the name, of the tank or well, (b) its state, (c) the expenditure to be incurred in repair in the current year, and (d) the establishment for cleaning and its cost, but the Village Munsif (the Mudaliar who is the leader of the fight against the Shanars) took upon himself to say that the plaint tank was used 'by Brahmins, Sivites etc.' It is not improbable that the Revenue Authorities afterwards thought that information as to tanks was not necessary and so, we find in 1890 (Exhibit VI) that a list is required of the wells alone and information is also then required on the point as to 'men of what caste and people of what street use each well.' It is further noteworthy that no report similar to Exhibit V relating to any tank in any other village is produced on the defendants' side. As regards the remaining facts relating to the dispute about the Shanars' bathing after death pollution and taking water for washing dead bodies, it is well-known that even Brahmins, who are allowed to bathe in all tanks and draw water from all wells, are only with reluctance allowed to bathe in certain tanks or to draw water from certain wells when the Brahmins who so wish to use the wells are under death pollution. Manu (Chapter V, Sloka 83) says that death pollution (ceremonial impurities, infectious and mental) becomes more and more severe as we descend in the scale of castes, lasting three times longer in the case of a Sudra than in that of a Brahmin (Kings and Students in theology whose duties deprive them of any right to indulge in sorrow have no pollution at all, the sacredness of their duties purifying them at once. Sloka 93).
12. A perusal of Exhibit II (the judgment in the case of 1885) and of-Exhibit IX (the District Magistrate's proceedings of 1907 out of which this suit arose and in which the incident of 1892 is referred to)' has left the impression in my mind that the higher castes (as a whole) did not intend in 1885 or 1891 to deny the right of the Shanars to use the plaint tank water on ordinary occasions but only to bathing in it when they were under death pollution. (The higher castes failed in their attempt of 1891). In another neighbouring village (Puliyuran village), the Pillais, while admitting that the Shanars had a right to bathe in a tank, (fed by a large spring) on all ordinary occasions, attempted in 1903 to prevent the Shanars from bathing while under death pollution. The Brahmin Sub-Magistrate made a report supporting the Pillai contention, but the Assistant Magistrate supported the Nadars' rights to bathe on all occasions (see Exhibit II) and held that the Pillais were in the wrong in having obstructed the Nadars.
13. While aware that Nadars have not kept their alleged right to the use of the niravi and the wells in it apart from their alleged right to the use of the outside well and that a lot of perjured testimony has been let in on either side in connection with the direct use of the outside well, I have come to the conclusion (after the best consideration that I have been able to give to the whole evidence and the probabilities of the case) that the general public (including the Shanars, Muhammadans and Christians) have a right to use the plaint tank water and the water of the well therein for the usual purposes to which such tanks are used in villages and that the defendants have failed to prove that the tank has been dedicated (either by express dedication or by long practice, acquiesced in by the other cast's and communities) to the exclusive use of the higher castes among the Hindu community. I would, therefore, give a judgment for the plaintiffs declaring the right of the Shanars to the use of the plaint tank and the well in its bed while dismissing their claim to draw water from the outside well or to use it directly for any other purpose. As this latter well was made the principal bone of contention in the suit, I would direct the plaintiffs to bear their own costs and to pay half of defendants' costs in both Courts. I might be permitted to suggest (considering the strained feelings between the higher and the lower castes in the village) that the duty of repairing, maintaining, and regulating the use by the public of the water of the plaint tank and of the well inside it should be taken over and looked after by the Ramnad Local Board under Section 95(3) and (6) and Section 100(A) of the Madras Local Boards Act V of 1884.