ITTICHERI EDATHIS SAMANTHAM OTHENAN NAMBIAR AYOTHIA RAMAN KAIMAL; THEKKEVITTIL ANANDA PISHAROTI Vs. TVANANDA PISHAROTI; ETTISHERI EDATHIL SAMANTHAN

JUDGEMENT

(1.) We cannot regard the judgment of the District Judge in this case as satisfactory. The suit is to recover the emoluments of the office of Kazhakam to which the plaintiff alleges his family has a hereditary right and for certain other sums. The plaintiff was dismissed from the office by the Urallan of the temple. The District Munsif found that the office was hereditary in the plaintiff s family. The District Judge has reversed this finding, but has given a decree for the plaintiff for the whole amount sued for, including the emoluments of the office subsequent to the dismissal. It is quite clear on his finding that the plaintiff was not entitled to a decree for the claim in so far as it related to the emoluments of the Kazhakam office.

(2.) We are unable to accept the finding on the question of hereditary right. It appears clearly from Exhibit B that the plaintiff s tarwad had been in possession of the office for a period of about three-quarters of a century. There is no evidence as to the original creation of a hereditary right. Such evidence cannot be expected in most cases of claims to inferior offices of the kind in question. Long possession is not in itself sufficient to create a hereditary right; but the Court would be justified in inferring such right from possession for a long time. The District Judge was apparently under the impression that, with regard to a hereditary office, there must be "definite proof." We understand him, by that expression, to mean proof regarding the actual creation of the hereditary office at some particular time. This is a standard of proof which it would be impossible to comply with, as already states), in many cases. There is nothing peculiar to a hereditary office which makes a presumption from long possession improper. Exhibit B affords some indication that the office is hereditary in plaintiff s family. It provides, inter alia, for payment annually of 540 seers of paddy as interest on a sum of 1760 fanams which was found due to a member of the plaintiff s family in the year 1857 on settlement of his accounts relating to the management of the temple for some time. There is no promise to re-pay the amount on any specified date; nor is there a provision that the sum would be re-paid when the family ceased to hold the office. Mr. Sitarama Rao also relies on the fact that it is the family of Thekke Vittu that is stated in Exhibit 13 to be entitled to the emoluments of the office. He argues that the family, including the women and children, would not be stated to have the right to the emoluments if any particular member of the family was holding it by appointment. We cannot say that this argument is altogether without weight, although it is quite possible that a whole family may be appointed to an office to which it has no hereditary right. We think it is necessary that the question should be decided afresh. If the plaintiff succeeds in establishing that his right to the office is a hereditary one, he would be entitled to a decree for the whole amount claimed, as no attempt was made to justify his dismissal. If the right to a hereditary office is not made out, then the plaintiff cannot be entitled to the emoluments of the office, that is, 540 seers of paddy a year. He would be entitled, however, to the amount of 540 kuzhams a year for interest on the sum of 1760 fanams which was found due in 1857. The exact nature of the remaining 720 kuzhams claimed does not clearly appear. It seems to be claimed on an agreement which was based on certain special services rendered by a member of the plaintiff s tarwad to the temple. Whether the services were of such a nature as to justify an agreement binding the temple for ever, and whether there was such consideration moving from the members of the plaintiff s tarwad as to justify a promise to pay 720 kuzhams for ever, are questions which have not been properly discussed in the judgment of either of the lower Courts. We reverse the decree of the lower Appellate Court and remand the appeal for fresh disposal according to law with reference to the above observations. Both parties may be allowed to adduce fresh evidence on the question of the nature of the claim relating to the 720 kuzhams of paddy a year. The costs in this Court will abide the result.

(3.) We may point out that the decree to be passed in favour of the plaintiff should be against the temple.