1. This is an appeal from the decree of the Subordinate Judge of Tuticorin, in Original Suit No. 11 of 1913, dismissing the plaintiff's suit on the ground that his claim was not of a civil nature under Section 9, Civil Procedure Code. The 1st plaintiff having died, the 2nd plaintiff alone has appealed to us against that decree and his learned Vakil has strongly urged that the finding of the lower Court is wrong.
2. The plaintiffs' case, as stated in the plaint, is that in the Adniada Alwar temple in Alwar Tirnnagari in the Tinnevelly District there is an office called 'Teertham or Teerthakar's' office of which they and others, in all 29 in number, are the office holders, that the duty of the said office holders is to recite the Prabandam or Tiruvoimoli and the Vedas in the temple and in places where the idol is taken in procession when the Goshti or group of Teerthakars is formed, that special places are allotted to each of them in the temple for this purpose and that attached to this office as an emolument of it is the right to receive Teertham or Loly water and Prasadam or holy food and some other small perquisites in a fixed order of precedence. The rank of the plaintiffs family is stated to be the 14th in what is called the 1st cup group; considerable importance no doubt is attached to this rank by the parties. The plaintiffs complain that the trustees, defendants Nos. 1 to 5, have improperly introduced into their group, in a place above theirs in rank, the 6th defendant who has no right to be there according to the practice in the temple and have thus illegally interfered with their rank or right of precedence.
3. They do not complain that any portion of the Teethe and Prasad am which have to be given to them is been reduced; but they ask the Court to declare that the 6th defendant is not a Teerthakar officer and is not entitled to any place or Stanam and any honours as such officer, and to restrain him by an injunction from occupying such a place and receiving such honours and the trustees from allowing him to do so. Both the trustees and the 6th defendant have denied the existence of any such office and of any duties or honours attached to it and have pleaded that the suit was not maintainable in a Civil Court. They also alleged that the 6th defendant was entitled to the rank given to him.
4. Before considering the question whether a civil right has been made out it is necessary to refer to a preliminary objection to the appeal raised by Mr. Bangachariar, viz., that the appeal has abated under Order XXII, Rule 4, Civil Procedure Code. The facts in this connection are these. The 6th defendant was made the 6th respondent in the appeal. He filed a memorandum of cross-objections under Order XLI, Rule 22, Clause 1, for the costs disallowed to him; some time thereafter he died but the appellant took no steps to bring his legal representative on record; and the time for doing it has now expired. If the facts stood there, there would be no answer to the objection. But the 6th defendants legal representative, who is Mr. Rangachariar's client, applied in time to have himself brought on the record in the memorandum of cross-objections and he was added to the record as prayed. It is argued that this did not make him party to the appeal. Mr. Rangachariar contends that the appeal and the memo of cross-objections are two distinct and independent proceedings and, therefore, the addition of the legal representative to the latter will not save the former from abating. He refers to the facts that the memorandum of objections has to be stamped as an appeal and that under Order XLI, Rule 22, Clause 4, the withdrawal of the appeal does not affect the hearing of the memorandum of objections as supporting his contention. He also relies on the case of Andrew v. Aiiken (1882) 21 Ch. D. 175 : 30 W.R. 701. Rule 22, Clause 1, itself furnishes the answer to this argument. That rule requires that a person should be a respondent in the appeal before he can file any cross-objections or be heard on them. It follows, therefore, that when the legal representative of the 6th respondent was allowed to come on the record in respect of the memorandum of objections he was in effect made respondent in the appeal and there can, consequently, be no abatement of the appeal on the ground alleged. Moreover the Privy Council has recently laid down broadly in the case of Brij Indar Singh v. Lala Kanshi Ram 42 Ind Cas. 43 : 33 M.L.J. 486 : 22 M.L.T. 362 : 6 L.W. 692 : 126 P.W.R. 1917 : 15 A.L.J. 777 : 119 Bom. L.R. 866 : 3 P.L.W. 313 : 26 C.L.J. 572 : (1917) M.W.N. 811 : 127 P.L.B. 1917 that the introduction of the legal representative of a plaintiff or a defendant for one stage of a suit, is an introduction for all stages. Applying this principle to appeals, the preliminary objection must fail as the appeal and the memorandum of objections are only parts of the same proceedings. There is no force in the argument that they are two disconnected and independent proceedings. The English case cited is easily distinguishable, as it refers to a suit and a counter-claim which is treated as an independent suit tried with the 1st suit. The preliminary objection must, therefore, be overruled.
5. Turning now to the main question in the case, it is clear from the plaint itself that the claim refers to a religious honour which consists of receiving Teertham and Prasadam in the temple, in a certain order of precedence. The claim is, therefore, prima facile not one of a civil nature. But plaintiffs have tried to bring it within the explanation to Section 9, Civil Procedure Code, by alleging that it is attached as an emolument to a religious office. It is conceded by the learned Vakil for the appellant that unless he establishes this, is suit must fail. This High Court recently held in the case of Thirumalai Alwar Aiyangar v. Srinivcusachariar Swamigal 36 Ind. Cas. 568on an examination that of the previous authorities on the subject, in a case like the one before us the existence of the office to which the emoluments claimed are said to attach must be proved and so must the connection between the office and the honour and dignities and perquisites claimed be established by clear evidence 'Accepting this statement of the law, we have to consider whether the plaintiffs have established on the evidence in this case the two above-mentioned positions they are bound to establish.
6. The first question then is whether there is such an office as the Teertham office in this temple. It is clear that to constitute an office one, if not the essential, thing is the existence of a duty or duties attached to the office which the office holder is under a legal obligation to perform and the non-performance of which may be visited by penalties such as suspension, dismissal, etc. The rendering of any voluntary service cannot of course constitute an office. Ordinarily temple offices have substantial emoluments attached to them in the shape of income from Inam lands and money payments; and though the absence of such emoluments is not necessarily by itself evidence of the non-existence, it makes it necessary to scrutinise carefully the evidence for its existence. Admittedly there is no emolument of any value attached to the so-called Teertham office. Plaintiff alleged that the duties of the Teertham office are to recite the Prabandam and the Vedas on stated occasions. Though the Teerthakars do recite Prabandams and Vedas the evidence does not establish that they are bound to do so as a matter of obligation. It may be mentioned that among the Teerthakars there are some 5 or 7 in number, who are called Adhypakamdars, whose special duty it is to recite these Prabandams and they are remunerated by Inam lands given to them. They are what may be called the official reciters in this temple. Plaintiffs are not such Adyapakamdars. It is, therefore, very unlikely that there would be any other unremunerated office holders for doing the same duty. It should also be remembered that it is not merely the Teerthakars that recite the Prabandams but all Vaishnavites present join in the recital. The only difference between the outsider and the Teerthakars, as shown by the evidence, is that the Teerthakars have special places allotted to them: in the temple to stand and recite and they are given the honour of Teertham and Prasadaru, before the outsider get them; and they have what is called an Arulapad', that is, their names are called out by the Arohaka in a certain order, when, if present, they have to respond by saying 'Nayinde', meaning 'I am here.' This does not seem 10 show that they are anything more than a recognised and privileged class of worshippers who are shown special consideration by having places allotted to them in the temple and by being given the honours before the ordinary worshippers in an order of precedence fixed by the usage of the temple. Plaintiffs' own witnesses who are mostly Teerthakars admit that no duties are attached to the position of Teerthakars and no penalty has been inflicted on any one of them for not reciting Prabandams. This evidence corroborates that of the defence witnesses to the same effect. Plaintiffs' 1st witness says: 'if I do not do my duty, (i.e., reciting) nothing could be done against us by the temple.' Second witness says the duty of the office is the getting of Teertham and Viniyogam; there is no other duty. The 3rd witness confesses that he does not know the Prabandams, and has never recited them, though he was always getting the Teertham like the others and that he has never been asked to explain his conduct or been punished for it for the last 30 years. The 4th witness, who is a cook, says that though he is a Teerthakar, he knows very little of the Prabandam and has never recited any, but he has always been getting his Teertham. Defence witnesses Nos. 3, 4, 5 and 11 say the same thing and two of them, viz., Nos. 4 and 5 are Teerthakars. In Original Suit No. 7 of 1877 one of the then Teertbakars, examined as the then plaintiff's 6th witness and who is now dead, stated categorically that as a Teerthakar he had no duties to discharge in the temple, see Exhibit XXV. There is a list of office holders in this temple produced by the defendants, Exhibit XXVI, in which there is no mention of any Teertham office. Perhaps much reliance should not be placed on this exhibit as it was produced at a late stage of the case, and is not free from suspicion. Exhibit II, a document of 1817, contains the list of persons who are recognised as entitled to Teertham and Prasadam in this temple. There are in it a number of persons who are not office holders at all in the temple. As against all this evidence on the defendants' side the learned Vakil for the appellant has been able to call our attention only to one statement in crossexamination of defence 7th witness and to one document Exhibit 0 as in his favour. The witness says that the Teerthaka'rs recite Prabandam and that it is their duty. It is not clear in what sense he used the word duty. It may be said in a general way that it is the duty of all persons present to recite the Prabandams if they can, but that does not show that legally enforceable duty exists. The witness is not an important man and his evidence is of little value. Exhibit C is a petition submitted by certain Teerthakars in 1870 to the Dharmakartha to' exclude a convicted Teerthakar from joining their assembly. In it no doubt they describe themselves as persons who perform Kainkaryam or service in the temple. The statement is not of much value in this cases as in a way the Teerthakar were doing some work in the temple by reciting the holy verses but it is a different thing to say that it was an obligatory duty. If there is such an office as plaintiffs claim, it would have been easy to give cogent evidence of it. On the evidence as set out it must be held that plaintiffs have not made out the existence of any obligatory duty on the part of the Teerthakars or of any office called the Teertham office.
7. On the next branch of the case, viz., as to the connection between the honours claimed and the position of the Teerthams, we have been referred to a statement in a petition in 1902 by the whole body of the Teerthakars, the appellant himself being a party to it, that 'there is no connection whatever between the said Vrithi' (that is, the work of reciting the Prabandam and the Vedas) 'and the Teerthain and honours.' This is strongly against the plaintiffs on this part of the case and it has not been satisfactorily explained. On a pravicms occasion when the existence of the Teerth am office and the connection of the honours with it was asserted they were denied and both were found against by the Subordinate Judge and by this Court. See Exhibits XXVII (c) and XXVII (e). No successful assertion of the right now claimed by the plaintiffs has ever been made up to date. The existence of the Teertham office and the connection of the honours with it must, therefore, be held not to be proved and the appeal fails in consequence and it must be dismissed with costs.
8. Wallis, C.J.--I entirely agree both as to the law to be applied and the effect of the evidence.
9. Judgment in the Memorandum of objections.
10. We allow the memorandum and award the representative of the 6th defendant his costs of the suit which were disallowed by the lower Court, and also the costs of the memorandum of objections.