Kunhamed Kutti, J.
1. This revision case raises the question as to how far the decision of a Caste Panchayat can be held valid when the Panchayat seeks to impose social segregation or ostracism as a mode of punishment.
2. The case arises out of a certain decision taken by Padmasaliya sub-sect of the Chettiar caste against P.W. 1, Parthasarathi Chetti, who was the headman of the community from 1952 to 1962. In C.C. No. 9240 of 1963, he complained that the aforesaid decision came within the mischief of Section 499 I.P.C. and amounted to defamation. The learned Fourth Presidency Magistrate upheld this contention, convicted the petitioner under Section 500 I.P.C. and sentenced each of them to pay a fine of Rs. 50, in default to undergo simple imprisonment for one month. There was yet another person Jagannatha Chettiar arrayed as third accused in the complaint. He was acquitted by the learned Magistrate under Section 258(1) Cri P.C.
3. About 150 families belonging to the aforesaid Padmasaliya community reside in the Washermenpet area of the city. The community is said to own a Thanneerpandal at Perampedu with lands attached to it, a choultry, tank and a temple. Adult members of the community assemble at the temple premises. No. 8 Sanjeevarayan Koil Street, to take decisions on communal matters on intimation sent by the headman or the vice-headman. After P.W. 1 tendered his resignation as headman, the present petitioners were appointed by the community as headman and vice-headman and P.W. 1 handed over the records and account books to the committee members on 12.8.1962, He did not, however hand over the properties; but claimed to manage them as hereditary trustee and the demand made by the succeeding dharmakartha of the charity as per Ex. P. 1, and the subsequent notice of P. 4 sent by the present petitioners and others was not complied with. On the other hand, he replied that the first petitioners and others were indulging in activities with a view to harass him. In the circumstances, a meeting of the community was convened for 25.4.1963, and P.W. 1 was intimated about this meeting. He did not attend. The meeting was, therefore, adjourned to 29.4.1963, with intimation to P.W. 1. The adjourned meeting was attended by about 40 members of the community including P. Ws. 1 to 5. The first petitioner who presided over the meeting asked P.W. 1 to hand over management of the trust properties and when he refused to do so, a decision is said to have been taken ex-communicating P.W. 1 from the community and interdicting members of the community from visiting his house or inviting him for any functions of the community. P.W. 1 then caused notices to be sent to the two petitioners and five others complaining about the excommunication. The allegations in the notices were denied in the replies sent by the petitioners and others. P.W. 1 was not invited for the marriage of P.W. 3's daughter, and when questioned by P.W. 1, P.W. 3 replied that he could not do so in view of the community decision. Further correspondence passed between the counsel of the parties. Ultimately, a complaint was filed by the P.W. 1 under Section 500 I.P.C.
4. The petitioners and Jagannath Chetti (acquitted by the learned Presidency Magistrate) denied the offence. The position taken up by them was that since P.W. 1 insisted on a suit being filed for recovery of the trust properties, the community men assembled at the meeting, decided that he should not be invited for functions till the litigation was over and a resolution was passed to that effect. It was further contended that the Committee functioned as an autonomous body exercising functions and duties through headman and a committee of members, that 47 members Of the community had sent a petition, Ex. D. 1 to convene a meeting to enquire into the conduct of P.W. and deal with him suitably according to the custom and usage, that on 29.4.1963, P.W. 1 was given an opportunity to explain his conduct and that since he defied the authority of the communal body, showed disrespect to the headman, and other members of the community, the community unanimously resolved that he should not be invited till the dispute was over.
5. The resolution so passed is entered in the minutes book Ex. D. 3. P.W. and his men would deny that any such resolution was passed at the meeting, and suggest that it was a later interpolation. The language of this resolution, which appears in the minutes book kept in the ordinary course of business, does not prima facie indicate any social ostracism of the nature sought to be proved by P.W. 1 had been intended. The court below however found the story of P.W. 1 namely that when he refused to pay heed to the demand of the first petitioner to hand over management of the trust properties, A. 1 (first petitioner) announced his ex-communication, A. 2, (the second petitioner) expressed approval of the ac| and A. 3 addressed the audience in support of it, acceptable as the said story gained corroboration from the testimony of P. Ws. 2 to 5, who as closely related to P.W. 1. The court below was also not inclined to accept the defence version that the ban imposed on P.W. 1 was a limited one as such a plea had not been specially raised in the reply sent by the petitioners.
6. I am unable to agree with the view taken by the Court below that the resolution entered in the minutes book is a later interpolation. There is no satisfactory evidence on record to support such a conclusion. The language of the resolution, as I already stated, cannot of itself be construed as defamatory. According to exception 9 to Section 499, I.P.C it is not defamation to make an imputation on the character of another, provided the imputation is made in good faith for the protection of the interests of the person making it or of any other person or for the public good. The learned Counsel for the petitioners also relied in this context on certain observations of Muthuswami Iyer J. in Queen v. Sri Vidya Sankara ILR 6 Mad 381 to urge that where circumstances are such that all that was said or done is consistent with one's duty, legal, moral, social or spiritual, the defamatory words would afford no evidence of malice when the occasion is privileged. However, for the purpose of deciding whether malice in law existed or not, it is necessary to consider whether the privilege was exercised with due care and attention, to look at the defamatory language which was employed and the mode of publication which was adopted and to see whether they are so far in excess of the privilege as to indicate a conscious disregard of the legal right of the party on, whose character the imputation was made.
7. In the above case, a Hindu Guru published a notice sending by post a registered post card daring the complainant to be an out-caste. The learned Judges held that this mode of communicating a sentence of ex-communication is quite new and not sanctioned by custom and that the duty arising from the relation of spiritual superior and disciple did not protect the libellous communications to persons who are not disciples and for the protection of whose spiritual interests, the power of ex-communication was not allowed by the custom of the caste. Thus the decision itself was against the Guru on the ground that by the form of communication adopted which was likely to reach others, he must be held to have committed the offence of defamation.
8. In Sukratendra Thirthaswami v. Prabhu 45 Mad LJ 116 : AIR 1923 Mad 587, on a formal report received from several members of the Gowd Saraswath Brahmin community alleging that the complainant had interdined with some panchamas the Swami issued a temporary interdict against the complainant under an apprehension, that he was about to take part in certain caste dinners and there was nothing to show that the Swami did not intend to follow up the temporary interdict by S final order after hearing the complainant. On these facts, a Bench of this Court held that the case fell within exception 7 to Section 499, I.P.C. The learned Judges observed that caste associations are autonomus, the powers vested in their constituted heads toeing, subject to any custom, those necessary for the protection of the interests committed to the charge and that the Court's only duty is to sea that those powers are exercised in accordance with the principles of natural justice, that is, after the person to be affected by their exercise had been beard and his defence has received fair consideration.
9. In Pothuraja Setty v. Padda Poliah : AIR1939Mad382 , Pandrang Row, J. took the view that a caste panchayat can deal with offences relating to caste usage and customs but it has no jurisdiction to decide questions regarding private property and impose any sanction such as loss of caste on, any member of the community who declines to part with his property. Construing exception 9 to Section 499 I.P.C. the learned Judge further held that it does not mean that is order to bring pressure to bear upon a per-con to part with his property, which he is entitled, in law, to keep, a defamatory allegation can be made on the ground that it is for the protection other of the person who made it or of the community to which he belongs.
10. The view taken by Panchapakesa Aiyar J. in Ellappa v. Ellappa : AIR1950Mad409 regarding exception 9 to Sectuion 499, I.P.C. is that a caste panchayat out-casting a member for a caste offence such as immorality, may claim protection under the customary right of the panchayat to go into the allegation of such immorality in defence against the prosecution for an offence of defamation; but such a privilege does not extend to a composite Assembly consisting of members of many Castes other than the interested castes.
11. The basis of the decision in the present case is that the alleged resolution of the panchayat amounted to ex-communication. Undoubtedly, in the changing social order where individual liberty is recognised as a pre-eminent right, decision taken on the basis of custom, usage, or religious or caste sentiments have to be appreciated in terms of changing times. This does not, however, mean that where an individual has done something wrong or prejudicial to the interests of his community, the members of his community which, by virtue of custom or usage is competent, to deal with such matters, cannot take a decision by common consent, and so long as such decision does not offend law, it can be enforced by the will of the community.
12. In the present case, the members of the Padmasalaya community of which P.W. 1 is a member, at a meeting assembled, found that his conduct in not making over properties to the newly elected President, Vice-President and members of the Committee was reprehensible and by a unanimous decision, the members of the community resolved not to attend the functions held in P.W. 1's house and not to invite him for functions held in tile houses of the community members. The manner in which this decision was taken, clearly shows that the petitioners had no individual part in it. Malice in law cannot be attributed to them. Nor am I satisfied that the language of the resolution could be construed as defamatory. In the circumstances, I am of opinion that the petitioners in this case cannot be held guilty of any offence under Section 500 I.P.C. They are, therefore, entitled to and are acquitted. The fine, if recovered, will be refunded to them.