1. This is an appeal from the decree of the Temporary Subordinate Judge of Sivaganga in Original Suit No. 5 of 1917. The suit refers to the hukdarship or trusteeship of a temple in Ariyakudy in the District of Ramnad, called the Thiruvengadam Udayan temple. Plaintiffs claim that they and defendants Nos. 5 to 11 are the hereditary trustees and sue to recover the temple and its properties and for other subsidiary reliefs. The Subordinate Judge having substantially decreed the plaintiffs' claim, defendants Nos. 1 to 4. have appealed to us-and have contended that the suit should have been dismissed.
2. The relationship of the parties is explained by the genealogical tree attached to the judgment which the Subordinate Judge says in paragraph 8 of his judgment he has prepared from the evidence of the 5th plaintiff. It has been accepted as substantially correct by both the parties; and we shall adopt it for the purposes of this appeal and refer to the various individuals in it in the same manner as the Subordinate Judge has done. It will be seen from it that the original ancestor of the family was one Murugappa. He had among others two sons, Santhappa and Sevuga I, Santhappa's branch does not con e into this suit as none of its members is a party here. Sevuga I had 4 sons Murugappa II, Alagiavanna I, and Venkatachala I and one Arunachela who was adopted away from the family, and with him and his branch we are not concerned. The other 3 sons have all left descendants. First to 3rd plaintiffs represent the first branch of Murugappa II. The 1st to 4th defendants and defendants Nos. 5 and 6 represent the second branch of Alagiavanna I; but the position of defendants Nos. 1 to 4 depends upon the validity of the adoption of the 1st defendant to Alagiavanna II by his widow; 4th to 6th plaintiffs, 8th, 10th and nth defendants represent the third branch of Venkatachala I. The original 7th and 9th defendants were subsequently transposed as 5th and 6th plaintiffs and so they do not appear among the defendants.
3. Plaintiffs disputed the adoption of the 1st defendant and treated him and his descendants, defendants Nos. 2 to 4, in their plaint as not being members of the second branch. The Subordinate Judge has, however, held the adoption to be true and valid and though a memorandum of objections has been filed against that finding the adoption was not seriously disputed before us and we have no doubt that the finding of the Subordinate Judge is right. The adoption was over 40 years ago and it was not disputed till 1901; the Subordinate Judge has referred to the numerous documents wherein the adoption has been recognised from 1874 onwards. He has also accepted the oral evidence of the defence witnesses Nos. 1, 3, 7, and 10, who speak to the adoption and we see no reason to discredit them in appeal. We attach no weight to the non-production of Isaipidimanam and Muri in this case in the face of the evidence on the defendants' side. Accepting the finding that the 1st defendant's adoption is true and valid, we treat defendants Nos. 1 to 4 as proper members of the second branch.
4. On the main question raised, the plaintiffs' case in the plaint is that the site for the plaint temple was purchased by the 'forefathers' of plaintiffs and defendants Nos. 5 to 11 and that the temple was built, and consecreted by them and that they endowed the temple and were carrying on the management; subsequently, the major members amog plaintiffs and defendants were managing as kukdarson behalf of all the descendants of the original man Sevuga Chattiar, i.e., Sevugan I. They claim that all the three branches are entitled to the hukdarship and they asked that the amicable arrangement made under Exhibit A in 1914 by the three branches jointly by which two representatives of each branch, in all six persons were to manage the temple affairs in rotation each managing for a year at a time should be confirmed. The case of the defendants Nos. 1. to 6, on the other hand, is that the hukdarship is confined to their branch alone as the temple was founded by Sevuga II of their branch on behalf of himself and his two brothers.
5. The Subordinate Judge held, on a consideration of all the evidence, and relying to a large extent on the way in which the parties interested acted with reference to this institution for the last 50 years, or more, that Sevugad, was its founder and, therefore, all his descendants were entitled to the hukda/ship. The finding has been attacked before us by the appellants mainly on the ground that the sale-deed, Exlibit I (d), of 1828 for the site of the plaint temple in favour of Sevuga 11, was wrongly discredited by the lower Court. Thougn the observations of the Subordinate Judge with reference to it are not without force, we think he has not correctly appreciated the effect of Exhibit XXVI with reference to it. That was a written statement filed in Original Suit No. 138 of 1903 by a number of members of this family; it is signed among others by the 5th plaintiff and the fathers of plaintiffs Nos. 3 and 6, and as 3rd plaintiff's father died (sic) after, the 3rd plaintiff has adopted it. In it they refer to a sale by the mahajanams 75 years before now (that is 1828) of the temple site to one Savuga Chetti. This by itself no doubt does not fix the reference to be to Exhibit I(d) though the description in it so far as it goes applied to it exactly. In that suit Exhibit I (d) was filed on the very day the written statement was put in as appears from the endorsement on it and it is now produced in the present suit from the file of the District Munsif in that Suit No. 138 of 1903. There can be hardly a doubt that the written statement was referring to Exhibit 1 (d). That if was the same document that was filed in 1877 is shown by the eadorsement on it about the collection of penalty in January 1878. Exhibit XXVI, therefore, doesseem to contain an admission on the plaintiffs' side about the truth of Exhibit I (d). The reference in it to Sevuga Chetty is thus clearly Sevuga II. We are, therefore, inclined to think that, in spite of the adverse criticism of the Subordinate Judge, Exhibit I (d) is a genuine document and that the site on which the plairt temple stands was purchased in Sevuga II's name. The temple was subsequently built on that site.
6. The question then is, 'Does it follow from these two facts that Sevuga II, was the founder of the temple and only his descendants are entitled to the kukaarship?' We do not think so. To draw such an inference several assumptions will have to be made for which there is no warranty. There is no deed of foundation in this case. To give exclusive rights to his descendants, we will have to assume that Sevuga II, himself paid his own moneys for buying the site and for building the temple; that he got it consecrated as a new institution and not as the continuation of an existing one, and that he acted for him self in all these matters and that he left no rules or instructions to regulate the succession to the trusteeship. We cannot assume all these things without evidence particularly as such an assumption is inconsistent with the conduct of the parties which we shall refer to presently. In the first place, it is not the appellants' case that Sevuga II, acted entirely for himself in getting the temple established, for they say that he acted on behalf of himself and his brothers, Arunachala II and Ramasami VII. In Exhibit I (d) there is not a word about the purchase being on behalf of any others or as the manager of any joint family. Whether that joint family consisted of Sevuga II and his two brothers only or of the members of all the three branches there is no direct evidence to show. Exhibit I (d) is, therefc re, quite inconclusive about the nature of the foundation and the rights of the partition in the hukdarship.
7. The 5th plaintiff, who seems to be well acquainted with the family, has given an account of this foundation from which it would appear that it was originally a kovil vidu or temple house where Sevuga I used to carry on the worship of the family deity. This kovil vidu is referred to in Exhibit XXVI. He says that Sevuga I used to go to Tirupati, another famous temple in Southern India dedicated to the same god, to hand over the money offerings he received in his kovil to the deity there and that on a certain occasion an Archaka in Tirupathi who had an inspiration told him that thereafter it was the Tirupathi god's wish that a temeple should be built for him in Aiyakudi and that from it the idea of building the plaint temple originated. He also says that Sevuga I died before the plaint temple was built out of subscriptions collected by the members of the family. The sane family god that was worshipped in the kovil vidu was installed in the new temple. If this is true, and there is nothing to contradict it, it would seem that the new temple was only an enlargement of the original institution in the kovil vidu and, according to Mahomed Ismail Ariff v. Ahmed Moolla Dawood 35 Ind. Cas. 30, the kovil vidu of Sevuga I, should be taken as the original foundation and he as the founder. We think, however, it would be safer to take this case as one in which there is no direct evidence of who the founder is and what the rules of succession to the trusteeship are and we must, therefore, infer them, from the practice of the institution and the conduct of the parties.
8. The earliest document after Exhibit I(d) is Exhibit VII, a deed of purchase of certain lands for the temple in 1855 by Arunachala II, the brother of Sevuga II, from Venkatachella VII. The identity of the parties appears from the oral evidence. This deed shows that by that time Arunachala had apparently become the manager of the temple but in what right he so became, we do not know whether as the seniormost of the second branch or of all the three branches put together. That this purchase was from the funds of the temple appears from the extracts from the inam. register Exhibit XXVIII (c) paragraph II; and also from Exhibit XXVIII which shows that the lands were purchased for the temple in the names of Srinivasa Iyangar and Arunachala Chetty, both described as servants of the temple. Exhibit XXVIII (a) shows that as early as 1849 an endowment was made to the temple by one Sathappa Chetty. See paragraph 5 in it. The lands purchased from temple funds for the temple will naturally be in the name of the manager or hukdar and Exhibit VII, therefore, merely shows that Arunachalam II, had probably succeeded Sevuga II, in the management. The next documents, the extracts from the inam register, have already been referred to.
9. The next piece of evidence we have is Exhibit K series. Exhibit K is a plaint filed by Arunachala II, and in it is joined as 2nd plaintiff Sevagu III of the third branch and he is described as hukdar. It is dated 1866. The suit was on a mortgage executed to the 1st plaintiff, probably on behalf of the temple, and it is very significant that in that suit a member of the third branch, described as a hukdar in the same manner as Arunachala, was added. Exhibit K-2 is the judgment and in it the same description appears. Exhibits K-3, K-4 and K-5 refer to another suit of a similar kind of 1870 where Sevuga. III is again the 2nd plaintiff and he is described in it also as hukdar. There is no reasonable explanation, why Sevuga III of the third branch was added as a party and described as the hukdar if, as defendants contend, the hukdarship was confined to their second branch. These proceedings in Court clearly show that Sevuga III was recognised as a hukdar so early as 1866.
10. We have also about this time, in January 1871, a sale-deed in favour of Arunachala II, Sevuga III, and Ramasami IV, representatives of all the three branches, Exhibit M-1, wherein they are all described as hukdars (according to the correct translation of the deed) for some lands bought for the temple. Again, in Exhibit M Venkatachala VII is described as hukdar.
11. Now it is argued that Arunachala II's action in joining the other branches should not be given much weight because in 1874 in his Will, Exhibit I (d), he repudiated their rights and that he tried also in the same year to bring in the members of Sathappa's branch as well, who, according to both plaintiffs and defendants, have no rights in the pointed out disputes arose between the parties in 1872 as Exhibit G indicated. Any action of Arunachala after that against the other two branches cannot be treated as of much weight or as affecting his previous admissions. In Exhibit G itself Sevuga III was admitted as a party to the suit as a kukdar though the 2nd petitioner Ramasami IV of the first branch was not. As the Subordinate Judge notices Exhibit M-1 was not apparently filed in that suit; if it has been possibly Ramasami IV may also have been added as a party.
12. Now it appears from Exhibit H-2 to H-4 of 1872 that Sevuga III and Ramasami IV tried to resist the opposition of the second branch to their rights to hukdarship in the temple by getting the raiyais on to their side and by collecting the rents due for the temple lands; they tried also to exclude the Second branch from management altogether as the Subordinate Judge explains in paragraph 19 of his judgment.
13. At this time in 1874 Arunachala II died and left the Will, Exhibit I (b), already referred to. In it he asserted that Sevuga II consecrated the plaint temple and that he was the darmakartha of the trustee and after his death his son Ramasami (No. 8) should be the darmakartha. We have already dealt with the value of this document as a piece of evidence. After Arunachela's death Ramasami VIII applied for succession Certificate in 1875 for outstandings due to the temple, vide Exhibit R-13. Sevuga III and Ramasami IV and Viravan of Sattappa's branch were made counter-petitioners and though these opposed the grant of the certificate to the petitioner, the District Judge held that as Ramasami VIII was admitted to be the heir and personal representative of the deceased while two of the counter-petitioners were divided cousins and the third a yet more distant dayadi, the certificate should go to the petitioner. He did not consider the question of hukdarship of the temple at all as the proceeding before him was a summary one. In fact, the certificate was given to collect 'debts due to the estate of said Arunachala Chetty, deceased,' and not statedly of the temple, Vide Exhibit VI-a. This order cannot be treated as of much value against the first and third branches as there was no adjudication in it even in a summary way as to the rights of hukdarship.
14. In 1876 Venkatachala VII and Sevukan III, describing themselves as hukdars, brought a suit, Original Suit No. 570 of 1876, on the mortgage, Exhibit M, and similarly they and Ramasami IV brought Second Civil Suit 1892 of 1876 excluding the second branch. Under Exhibits M-12 and K-10 and we also find Sevugan III executing a Will, Exhibit N, in the same year asserting that the temple site was bought by the ancestors of his family, he and his elder brother and his son built the temple and endowed it. He gives the hukdarship to his adopted son Lakshamana. Similarly, in 1879 Ramasami VIII also executed a Will, Exhibit I (c). Except as evidence of assertions of right, these Wills are of little value in this case.
15. The disputes went on between the parties, as fully explained by the Subordinate Judge in paragraphs 21 to 29 of his judgment, it is hardly necessary to repeat what each party did in detail again. In the meanwhile, we find several properties of considerable, value purchased and endowed to the temple, by the first and third branches, Exhibits M-2 of 1873, and M-3 to M-11 from 1875 to 1888. Suits were brought sometimes by 1 and 3 branches alone and sometimes by all the, three and sometimes by strangers against them. See Exhibit R series as an example of the last where only 1 and 3 branches were added. In 1886 a criminal complaint was filed by a servant of Srinivasan Chetty, the 5th defendant, against the 5th plaintiff, Ramanathan Chetty, and his men and in that case the Magistrate found that the possession of the temple properties were with Ramanathan. The disputes culminated in a regular suit brought by the 1st defendant through his agent, Original Suit No. 14 of 1901, Exhibit XI for rent in which he asserted Sevakan II was the man who purchased the temple site and built the temple. Soon after, fearing a breach of the peace on account of these disputes, the Magistrate interferred under the Criminal Procedure Code to prevent it and locked up the doors of the temple so that no puja could be done there. When matters came to such a pass, the parties seem to have come to an amicable arrangement by Exhibit XII in June 1901 at the mediation of the important members of their community. It is signed by 1st plaintiff, and by the father of 3rd plaintiff of the first branch, by the first defendant for himself and as guardian of Ramasami IX by his agent, Vengusami Iyengar, and the 5th defendant of the second branch and by the 5th plaintiff and father of 6th plaintiff of the third branch. They are all admitted to be hukdars. By it they appointed three strangers as trustees to take charge of the temple and its properties and carry on the worship till they could all unite together and take over the management themselves. The suit, Original Suit No. 14 of 1901, was to be withdrawn and the key of the temple to be obtained from the Magistrate and Ramasami IX was to refund Rs. 2,800 collected by him. This arrangement, however, was declared invalid by the Courts as it amounted to an alienation of the trusteeship to 3rd parties. Nevertheless, the acknowledgment by the representatives of all the three branches of the right of hukdarship in the other branches in a solemn deed loses none of its force.
16. As the transaction fell through, the third branch brought Original Suit No. 58 of 1911 to recover the properties from the three stranger trustees, vide Exhibit XVI and in it the members of the first and second branches were made parties. The suit was based on the existence of the rights of hukdarship in all the branches which was expressly asserted and yet the members of the second branch did not care to deny it and allowed the case to go ex parte. The decree, Exhibit B, was in favour of all the branches jointly but it was executed and possession obtained by the third branch.
17. Then, in 1914, the parties again met together and made an arrangement, Exhibit A, for the management of the temple affairs temporarily. The nature of the arrangement has already been referred to. Though the scheme they adopted was a temporary one till a proper scheme was settled by Court, still Exhibit A is based on an admission as to the rights of hukdarship of all three branches.
18. We have now referred to all the important documents in connection with the management of this temple. The appellants have adduced soma oral evidence of the temple servants and others to show that in spite of all disputes the members of their second branch always continued in management. The Subordinate Judge has refused to accept this evidence or attach importance to it in the face of the documentary evidence showing that each party was trying to assert its rights ever since 1871 when the quarrel began; and we agree with him. There is further a series of kisl receipts for temple lands all in the name of the 5th plaintiff of the third branch, Exhibit O series.
19. To sum up the evidence, we have the sale-deed for the site of the temple in the name of Sevuga II and the temple was built on it during his time. Admittedly, he acted on behalf of himself and others but there is no direct evidence to show whether he so acted only for his branch or for the whole joint family consisting of all the three branches. There is no evidence that the three branches had become divided from one another at that remote period. The earliest reference we have to any division is in Exhibit VI (b) of 1875. There is also no definite evidence as to how the money for the purchase of the site and for the building of the temple was found. There is some evidence that, prior to the building of the plaint temple, Sevuga I, the common ancestor of all the three branches, had a place of worship for the same deity as was afterwards installed in the plaint temple in a kovil veedu or temple house and that the idea of building the new temple probably arose with him though he was not able to carry it out and it is not unlikely that the new temple was treated as an enlargement of the old institution. The fact that there is an effigy of Sevuga I in the temple while there is none of any other ancestor of Sevuga II has some significance in this connection.
20. It is, however, clear on the evidence that the rights of hukdarship in the first and third branches were recognised by Arunachala II of the 2nd branch, so long ago as 1866 and this state of affairs continued till at least 1871, when quarrels began and each side tried to oust the other. During, that period we find numerous documents where the rights of 1 and 3 branches were asserted. The quarrels were once settled by Exhibit XII each branch recognising the right of the other branches but, unfortunately, the arrangement fell through. Again, a settlement was made on a singular footing, Exhibit A, and though it was a temporary one it is still in force and will continue so till the Court frames a scheme.
21. Now on all this evidence we are inclined to hold that the plaintiffs have established their case that they and the defendants are all equally entitled to the hukdarship of the plaint temple either because Sevuga I was accepted as the real founder as the Subordinate Judge has found or because Sevugan I was acting on behalf of all the three branches of the family.
2. The learned Vakil for the appellants contended that the second alternative was not put forward in the plaint and if it is to be allowed to be raised he should have an opportunity of meeting that case. The plaintiffs merely stated in their plaint that their 'forefathers' purchased the land and built the temple and consecrated it and that subsequently all the descendants of Sevugun I were managing the temple affairs as hukdars under hereditary right. They did not confine their case to proving that Sevugun I bought the site and built the temple. In the written statement, though it is asserted that Sevugan II bought the land and built the temple, the issue framed, viz., the first part of Issue No. I is quite general in its terms; it is 'whether plaintiffs and defendants Nos. 7 to 11 are hereditary trustees' no doubt the Subrodinate Judge says in his judgment that the question turns upon whether the temple was founded by Sevugan I or II. As he was finding that Sevugan I was the founder there was no other question for him to consider. Though we are not dissenting from his finding we have considered that the case might be put on the alternative ground also, namely, that if Sevugan II was to be treated as the founder he was acting on behalf of not only his brothers but all the members of the three branches who apparently were then a joint family. The case was made in the lower Court and is not a new case; for otherwise there would have been no need to adduce the volume of evidence that has been adduced regarding the conduct and admissions of the parties. It is not suggested by the appellants that there are any new documents or other evidence which they could have produced but did, not meet the alternative case. We think the objection is unsubstantial and we overrule it.
3. We agree with the Subordinate Judge in his finding that plaintiffs and defendants are all entitled to his hukdarship of the plaint temple.
4. The learned. Vakil for the appellants did not argue any other point before us but the learned Vakil for the plaintiffs argued that the question of the right to the trusteeship of the plaint temple was res judicata between the second and third, branches by reason of the decision in Original Suit No. 58 of 1911. In the view we have taken of the case, it is not necessary to decide this question. We have already dealt with the question raised in the memorandum of objections. In the result, the appeal and the memorandum of objections both fail and are dismissed with costs of 1st and 4th plaintiffs in the appeal and of the defendants No. 1 to 4 in the memorandum of objections.