Walter Schwabe, C.J.
1. I regret to be called upon to give a decision in this case which would, in any opinion, have been much better disposed of if the parties had brought to a successful issue the negotiations for a settlement which, we were informed, were taking place. As there negotiations have failed, the parties are entitled to our judgment.
2. The facts of the case, so far as they are relevant, are that, the plaintiff represented a temple of the deity Vishnu of very old standing indeed. Throughout the arguments the plaintiff's temple has been referred to as the 'Y' temple. The defendant's temple is said to be a temple founded some, where about 1832 and the principal deity installed in that temple is known as Vendanta Desikar, himself at one time a worshipper of Vishnu. The followers and worshippers of that temple have been referred to in this ease as those of the temple 'U.' The two sets of worshippers belonging to the two great divisions of 'the Vaishnavite religion, the northern and southern may be referred to as TJ and Y owing to the shape of their Namams. The U temple is practically adjacent to the Y temple and there is no doubt that it was at times exceedingly inconvenient to the Y temple to have the U temple there, because it had processions in streets and music and other things which might interfere and probably did interfere with the reverent and decent worship observed at the Y temple. At that time the Sudder Court had decided and it was then accepted as law, that no new procession' and no procession for any newly installed deity could be lawfully carried on in the streets, and that any one objecting to such things could, by applying to the Court, get an injunction restraining them. In fact, the Sudder Court had established the principle that, as far as the legality was concerned, only he old established procession could be allowed or permitted. The parties very naturally tried to find a modus vivendi and they entered into an agreement Exhibit A, and another agreement of about the same date, 26th January, 1846, which is not produced before us, but is recited in Exhibit A. The terms of the document are quite clear. It recited that there had been disputes, ever since the institution' of the Vedanta Desikar temple, about the processions through the streets and other disputes relating to some complaint of the U temple against some action of the, Y temple. The, contract then recites the agreement entered into, by the Y temple in favour of the U temple, and it recites an agreement to the effect that the U temple should be at liberty to hold processions of its deity through the streets on 23 specified days and that, on 17 other days, if, in bringing the god out of the temple for short distances through the street on the way to the hall, that short procession clashed with some procession of the Y, temple, then the U temple's procession should be fixed for some either convenient time. No doubt this latter part would necessarily imply an agreement by the Y temple not to interfere with the conduct on those 17 days, of this short Ceremony and, the entrance into the street for that purpose and not to interfere by way of attempting to stop it, but would confine its claims in respect of that to a right to have it postponed to a more convenient time. Then, follows, beginning at line 28, a statement of what the U temple undertakes to do. It first of all gives complete liberty, so far as U temple is concerned to the Y temple to conduct processions and festivals of any kind at any time in favour of any deity throughout the year. In other words, the trustee of the U temple for himself and his successors undertakes not to interfere with whatever the Y temple may choose to do, whereas the trustees of the Y temple had by their agreement undertaken not to interfere by applications for injunction or otherwise, with whatever the U temple may choose to do in respect of the specified days. Then follows the term providing what is to happen in the event of the processions of the two temples clashing and in effect U gives a right of precedence to Y. It is argued that you must imply into that contract a term that the U temple will not hold any procession for its then installed deity or any other deity installed, thereafter, on any days except the 23 by procession, I mean long procession, through the streets and I presume also that except on the 17 days it will not hold its short processions though the latter point has not been argued. Now, the law on the subject of the implication of terms in a contract has frequently been misunderstood and frequently misapplied; but it was definitely laid down in a case called The Moorcock (1889) 14 P.D. 64 by Bowen, L.J., and the words used by him in that case were again cited with approval and the principle rather mote clearly enunciated in Hamlyn v. Wood 64 L.T. 286 : 40 W.R. 24 and the passage which is usually quoted on this point is from the judgment of Kay, L.J. 'The. Court ought not to imply a term in a contract, unless there arises from the language of the contract itself, and the circumstances under which it is entered into such an inference that the parties must have intended the stipulation in question that the Court is necessarily driven to the conclusion that it must be implied.'
3. In this case, there is No. express term limiting the U temple to 23 days for its processions, and the question for consideration is, whether the Court is necessarily driven to the conclusion that the parties must have intended that stipulation. In my judgment, the Court is not so driven because it seems to me that, there was at the time of the contract no necessity for the existence of such a stipulation. It was thought that at that time, the contract provided for all that the Y temple required and they, gave the U temple license, for 23 days and the law could be taken to provide for the rest. When we, find the parties contracting on the basis of what was then supposed to be the law, there could be no necessity for implying a term which if put m would merely be stating what it was supposed the law was. In my judgment there is ample consideration for this contract without any such term. No doubt it would have been a sensible arrangement if the extract had said 'if you do not interfere with my 23 days and short procession, I will not interfere with you at all,' and that, in my judgment, is what the contract did and was intended to do, I do not think that it is open to the Court, when the law has been differently interpreted or possibly altered, to imply as a term what the parties would have stipulated for at that time, if they had thought about it, or if the law had then been otherwise.
4. On these grounds, I think, chat this judgment is wrong. When I say, that, I do not mean that I am to be taken to have approved of the rest of the judgment, because the other points have not been argued. But the learned Judge throughout his judgment assumed that what the contract meant was that the processions were to take place only on 23 days, and it appears that he did not consider the question whether or not that was the true meaning of the contract and, I rather gather that it was not his fault that he did not so consider, it because the point was not taken, or, at any rare, brought particularly to his notice in the Court below, and, indeed, in the grounds of appeal the point finds no place until a late date when the amended grounds of appeal were pat in. On this ground, I think that the injunction granted must be dissolved and that this appeal must be allowed with costs throughout. The memorandum of objections must be dismissed with costs.
5. I should add that I find nothing in the agreement to limit the U temple in installing new idols or taking them in procession. Nothing that I have said must be taken in any way to express a view as to whether the contract is or is not a binding contract. I appreciate that this judgment must leave open many matters between the two temples, because it seems to me that unless some arrangement is to come between them, there are bound to be difficulties and I urge upon the parties in the light of this judgment to see if they cannot arrive at some suitable way of carrying on their respective rites in future without interfering with each other.
6. I agree that the decision in this case must rest on the interpretation of the contract Exhibit A. The first part recites what the Y temple allowed the U temple to do, i.e., the Y temple agreed to refrain from objecting to the U's processions on 23 specific days, and the second part of' Exhibit. A recites hat the U temple agreed to do, i.e., it would refrain from objecting to Y's procession on any day, and particularly, it would give precedence to the Y temple on the 23 specific days, and also at any time when their Vasantha Ootsavam or Vadaithi processions clashed with those of the Y temple. Beyond that the contract does not go. It is a contract as regards what was to be permitted by each side, i.e., what each side agreed to allow the other to do as regards definite festivals which were then taking place or which might take place in the future: and it was not a contract as regards what was to be prohibited to each side for the future. While admitting that, the Y trustees came to the making of the contract claiming that all processions of the U temple were, contrary to the then law, I agree that a prohibition, to be fastened on the U temple by the Y temple, of all future1 processions by the former not mentioned by the contract was not in the contemplation of the parties as part-of-that contract, because the Sudder Court Law as then in force, would deal with that, and it was not, therefore,, necessary for the parties themselves to provide for it. I agree that this Court cannot hold that the parties must have intended the contract to imply such a prohibition or that this Court, is, therefore, driven to imply it. The contract is perfectly consistent and intelligible without implying that. la my interpretation the obligations under taken by the U trustees under Exhibit A were (1) to refrain from interfering with any of Y's processions and (2) to give precedence to its processions on the occasions specifically laid down in the contract It is not Y's case that, on this interpretation of the contract, there has been any breach thereof. Issue No. 2 in this case, which is 'whether the defendants committed any breach of the said agreement,' must, therefore, be decided against the plaintiffs. The plaintiff's suit as framed cannot, therefore, stand and they are not entitled to an injunction in the terms prayed for. It is not necessary for the purpose of deciding this suit to record a finding on issue No. 1, which is 'whether the agreement is true, valid and binding on the defendants' or to say how for Exhibit A 'itself as I interpret it, in reference to the obligations which it imposed on the then trustees, was a valid and legal contract, or whether it is now binding on the present defendants, the successors of those trustees, I agree in the order proposed by the leaned Chief Justice.