1. This is an appeal from the decree of the Temporary Subordinate Judge of Sivaganga, in O.S. No. 5 of 1917. The suit refers to the hukdarship or trusteeship of a temple in Ariyakudy in the District of Ramnad called the Timvengadam TJdayan Temple. Plaintiffs claim that they and defendants 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 plaintiff's claim, defendants 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 I 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 come into this suit, as none of its members is a party here. Sevuga I, had four sons, Murugappa II, Alagiavana I, and Venkatachala I and one Arunachala who was adopted away from the family, and with him and his branch we are not concerned. The other three sons have all left descendants. 1st to 3rd plaintiffs represent the first branch of Murugappa II. The 1st to 4th defendants and defendants 5 and 6 represent the second branch of Alagiavana I; but the position of defendants 1 to 4. depends upon the validity of the adoption of the 1st defendants to Alagiavana II by his widow; 4th to 6th plaintiffs, 8th, 10th and 11th defendants represent the 3rd branch of Venkatachala I. The original 7th and 9th defendants were subsequently transposed as 5th and 8th 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 2 to 4 in their plaint, as not being members of the second branch. The Subordinate Judge has, however, held that 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 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 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 1 to 4 as proper members of the second branch.
4. On the main question raised, the plaintiff's case in the plaint is that the site for the plaint temple was purchased by the 'fore-fathers' of plaintiffs and defendants 5 to 11 and that the temple was built and consecrated by them and that they endowed the temple and were carrying on the management; subsequently the major members among plaintiffs and defendants were managing as hukdars, on behalf of all the decendants of the original man Sevuga Chettiar, i.e., Sevuga I. They claim that all the three branches are entitled to the hukdarship and they ask that the amicable arrangement made under Ex. 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 defendants 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 Sevuga I was its founder and therefore all his descendants were entitled to the hukdarship. This finding has been attacked before us by the appellants, mainly on the ground that the sale-deed, Ex. I(d) of 1828, for the site of the plaint temple in favour of Sevuga II was wrongly discredited by the lower Court. Though the observations of the Subordinate Judge with reference to it are not without force we think that he has not correctly appreciated the effect of Ex. XXVI, with reference to it. That was a written statement, filed in OS. No. 138 of 1903 by & number of members of this family; it is signed among others by the 5th plaintiff and the fathers of plaintiffs 3 and 6; and as 3rd plaintiff's father died soon 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 Sevuga Chetti. This by itself no doubt does not fix the reference to be to Ex. I(d), though the description in it, so far as it goes, applied to it exactly. In that suit, Ex. 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 Munsiff in that suit 138 of 1903. There can be hardly a doubt that the written statement was referring to Ex. I(d). That it was the same document, that was filed in 1877, is shown by the endorsement on it, about the collection of penalty in January, 1878. Ex. XXVI therefore does seem to contain an admission on the plaintiffs' side about the truth of Ex. I(d). The reference in it to Sevuga Chetty is thus clearly to Sevuga II. We are, therefore, inclined to think that in spite of the adverse criticism of the Subordinate Judge, Ex. I(d) is a genuine document and that the site on which the plaint temple stands was purchased in Sevuga II's name. The temple was subsequently built on that site. The question then, is:
Does it follow from those two facts that Sevuga II was the founder of the temple and only his descendants are entitled to the hukdarship?6. We do not think so. To draw such an inference, several assumptions will have to be made for which there is no warrant. 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 himself 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 Ramasatni VII. In Ex. II(d), there is not a word about the purchase being, on behalf of any others, or as the manager of any joint family and yet admittedly the purchase was on behalf of a 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, Ex. I(d) is therefore quite inconclusive about the nature of the foundation, or the rights of the parties 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 there was originally a Kovil Veedu, or temple house where Sevuga I used to carry on the worship of the family deity. This Kovil Veedu is referred to in Ex. XXVI. He says that Sevuga I used to go to Tirupathi, 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 temple should be built for him in Ariyakudi 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 same family God that was worshipped in the Kovil Veedu 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 Veedu and according to Mahomed Ismail Ariff v. Ahmed Moola Dawood (1916) 43 Cal. 1085, the Kovil Veedu 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. The earliest document after Ex. I(d) is Ex. VII, a deed of purchase of certain lands for the temple in 1855, by Arunachala II, the brother of Sevuga II, from Venkatachala 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 senior most 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, Ex. XXVIII(c), paragraph II; and also from Ex. XXVIII, which shows that the lands were purchased for the temple, in the names of Srinivasa Iyengar and Aurnachalam Chetty, both described as servants of the temple. Ex. 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 the temple funds for the temple will naturally be in the name of the manager, or hukdar and Ex. VII therefore merely shows that Arunachala II had probably succeeded Sevuga II in the management. The nest documents, the extracts from the Inam Register, have already been referred to.
8. The next piece of evidence we have is Ex. E series. Ex. K is a plaint filed by Arunachala II and in it is joined as the second plaintiff Sevuga 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 Arunaehala, was added. Ex. K-2 is the judgment and in it the same description appears. Exs. 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 be is described in it also as hukdar. There is no reasonable explanation why Sevuga III of the 3rd 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.
9. 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,--Ex. M-1, wherein they are all described as hukdars (according to the correct translation of the deed) for soma lands bought for the temple. Again in Ex. M, Venkatachala VII is described as hukdar.
10. Now, it is argued that Arunaehala II's action in joining the other branches should not be given much weight, because in 1874, in his will, Ex. I(b), 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 hukdarship: see Ex. XIV. As the Subordinate Judge has pointed out, disputes arose between the parties in 1872, as Ex. G indicates 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 Ex. G itself, Sevuga III was admitted as a party to the suit as a hukdar, though the second petitioner Ramasami IV, of the 1st branch was not. As the Subordinate Judge notices, Ex. M-l was not apparently filed in that suit; if it had been, possibly, Ramasami IV may have also been added as a party.
11. Now it appears from Ex. 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 rights on to their side and by collecting the rents due from the temple lands; they tried also to exclude the 2nd branch from management altogether, as the Subordinate Judge explains in paragraph 19 of his judgment.
12. At this time, in 1874, Arunachala II died and left the will Ex. I(6), already referred to. In it he asserted that Sevuga II consecrated the plaint temple and that he was the Darmakartha or the trustee and after his death his son Ramasami (No. 8) should be Darmakartha. We have already dealt with the value of this document as a piece of evidence. After Arunachala's death Ramasami VIII applied for succession certificate in 1875, for outstandings due to the temple: vide Ex. R-13. Sevuga III and Ramasami IV and Vyravan of Sathappa'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 the 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 the said Arunachala Chetty deceased' and not statedly of the temple: vide VI-a. This order cannot be treated as of much value against the 1st and 3rd branches, as there was no adjudication in it, even in a summary way, to the rights of hukdarship.
13. In 1876, Venkatachala VII and Sevuga. III describing themselves as hukdars, brought a suit, O.S. No. 570 of 1876, on the mortgage Ex. M; and similarly they and Ramasami IV brought S.C. Suit 1892 of 1876, excluding the second branch, vide Exs. M-12 and K-10. And we also find Sevuga III executing a will, Ex. N, in the same year, asserting that the temple site was bought by the ancestors of his family and that he and his elder brother and his son built the temple and endowed it. He gives the hukdarship to his adopted son Lakshcaana. Similarly in 1879, Ramasami VIII also executed a will, Ex. I(c). Except as evidence of assertions of right, these wills are of little value in this case.
14. The disputes went on between the parties, as fully explained by the Subordinate Judge, in paragraphs 21 and 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 the third branches, Exs. M-2 of 1873, and M-3 to M-11 from 1875 to 1888. Suits were brought sometimes by first and third branches alone and sometimes by all the three and sometimes by strangers against them. See Ex. E series, as an example of the last, where only first and third 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, O.S. No. 14 of 1901, Ex. XI for rent, in which he asserted Sevuga II was the man who purchased the temple site and built the temple. Soon after, fearing a breaoh of the peace, on account of this dispute, the Magistrate interfered under the Criminal Procedure Code to prevent it and locked up the doors of the temple, so that no puja could he done there. When matters came to such a pass, the parties seem to have come to an amicable arrangement by Ex XII, in Tune, 1901, at the mediation of the important members of the community. It is signed by the 1st plaintiff and by the father of 3rd plaintiff of the first branch, by the 1st defendant, for himself and as guardian of Ramasaim IX, by his agent Vengusami Aiyangar, 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, O.S. 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 third 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.
15. As the transaction fell through, the third branch brought O.S. No. 58 of 1911 to-recover the properties from the three stranger trustees: vide Ex. 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, Ex. B, was in favour of all the branches jointly; but it was executed and possession obtained by the third branch.
16. Then in 1914, the parties again met together and made an arrangement, Ex. 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 Ex. A is based on an admission, as to the rights of hukdarship of all the three branches.
17. We have now referred to all the important documents in connection with the management of this temple. The appellants have adduced some 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 h s refused to accept the evidence, or attach importance to it, in the face of the documentary evidence, showing that, each party was trying to assert his rights ever since 1871, when the quarrel began and we agree with him. There is further a series of kist receipts for temple lands, all in the name of the 5th plaintiff of the third branch. Ex. O series.
18. 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 Ex. 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 that building of the plaint temple, Sevuga I, the common ancestor of all the three branches, bad 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.
19. It is, however, clear on the evidence that the rights of hukdarsbip in the first and third branches were recognised by Arunachala II of the second 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 first and third branches were asserted. The quarrels were once settled by Ex. XII, each branch recognising the right of the other branches but unfortunately the arrangement fell through. Again a settlement was made on a similar footing. Ex. A, and though it was a temporary one, it is still in force and will continue so, till the Court frames a scheme. 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 Sevuga II was acting on behalf of all the three branches of the family.
20. 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 Sevuga I were managing the temple affairs, as hukdars under hereditary right. They did not confine their case to proving that Sevuga I bought the site and built the temple. In the written statement, though it is asserted that Sevuga II bought the land and built the temple, the issue framed, viz., the first part of issue 1 is quite general in its terms; it is 'whether plaintiffs and defendants 7 to 11 are hereditary trustees'--no doubt the Subordinate Judge says in his judgment that the question turns upon whether the temple was founded by Sevuga I or II. As he was finding that Sevuga 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 Sevuga II was to be treated as the founder, he was acting on behalf of not only his brothers but all the members of three branches, who apparently were then a joint family. That 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, to meet the alternative case. We think the objection is unsubstantial and we overrule it.
21. We agree with the Subordinate Judge in his finding that plaintiffs and defendants are all entitled to the hukdarship of the plaint temple.
22. 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 O.S. 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 1 to 4 in the memorandum of objections.