V S GOVINDACHARIAR Vs. NATTU KESAVA MUDALIAR

JUDGEMENT

(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, 26 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 Cither 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 : 58 L.J.P. 73 : 60 L.T. 654 : 37 W.R. 439 : 6 Asp. M.C. 373, 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 (1891) 2 Q.B. 488 : 60 L.J.Q.B. 734 : 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.