VYTHILINGA MUDALIAR Vs. RAMACHENDRA NAICKER

JUDGEMENT

(1.) Sowrirajaperumal temple of Tirukkannapuram in theNannilam Taluq of the Tanjore District, wss entitled to receive from the Government an annual money allowance spoken of as Mohini. This allowance used to be disbursed from the Public Treasury till 1863. In that year the Government made another arrangement with reference to the allowance. The temple itself having owned in different villages ryotwary lands liable to pay to Government a total assessment of Rs. 705- 9-2, the institution was exonerated from the liability to pay this assessment and the liability of the Government to pay the allowance to the temple was fro tanto put an end to. With reference to the remainder of the allowance the assessment due to Government in respect of certain ryotwary lands in four villages was directed, to be paid over thereafter to the trustees of the temple. Sami Naik who was taken to be the then holder of these lands executed a Muchalika to Government undertaking to pay the assessment to the temple. The trustees of the temple also executed a muchalika to Government agreeing to receive the assessment due upon the lands referred to in satisfaction of the claim the temple till then had on the Government. No writing passed between the trustees on the one hand and Sami Naik on the other. But ever since, payments as contemplated under the arrangement were made by Sami Naik or his successors up to the last revision of settlement in the District.

(2.) The present litigation is in respect of moneys claimed to be due to the temple from the defendant Kamaehandra Naik, grandson of Sami Naik, who in one of the Suits (O.S. No. 196 of 1901) ] is impleaded in his character of trustee of the Enangudi Choultry ( founded by Sami Naik and endowed with 10 velis and odd of land belonging to him in. one of the said four villages, while in the other (O.S. No. 198 of 1902) he is impleaded as holding in his own right part of the lands the revenue of which is alleged to have been assigned over to the temple. In the first of these suits the plaintiff claims Rs. 182-9-7 as the amount pajable per annum by the choultry for 3 faslis from 1307 and in the other Rs. 219-11-8; payable per annum by Eamachandra Naik personally for the Ihree faslis from 1308. Various contentions of law and fact were raised in the written statements, but only one point has at this stage to be considered, viz., whether the trial of the contention as to the extent actually in the possession of the defendants in the respective suits out of the lands the right to the revenue whereof was granted to the temple, is barred by the decision in two previous suits (O.S. No. 370 of 1897 and O.S. No. 50 of 1899) brought on behalf of the temple against the choultry and Ramachandra Naik respectively, for the recovery of sums claimed to be due on account of three faslis prior to the periods in question in the present suits.

(3.) It will be sufficient to deal with the suit against the choultry, as the decision of the question in the other suit practically follows this. Mr. Krishnaswamy Aiyar on behalf of the plaintiff, if I understood him rightly, suggested that the plaintiff's claim is on a contract between the temple and the choultry under which the choultry is bound to pay to the temple a fixed sum of Rs. 182-9-7 per annum, without reference to the question of the possession of the Mohini lands by the choultry or the extent thereof actually in its hands. This suggestion is altogether unwarranted by the plamt as the following extracts therefrom, which state the nature of the claim, will show. 3. On 26 November 1863, defendant's paternal grandfather Sami Naicker executed a Muchalika to Her Majesty's Government stating that he would pay to the said (Sowriraja-perumal) temple from fasli 1273 the sum of Us. 1,117-5-8 being thethirva (exclusive of Kayal income) of 47 vetis 18 mahs 47 9/16+1/32, gulis of lands in the four villages of Pandaravadi PuKakudi &a, in Nanuilam Taluk, just as he had been paying to the Sircar. Under 1 the agreement relating to charity and the partition deed, executed in the family of the said Sarni Naicker, 10 velis 18 mahs 62J gulis in Pandaravadi Puliakudy village out of the lands mentioned in the said much.ilika, has been assigned to the charity- choultry in Enangudi which was under the management of the said Sami Naicker. So long as the said Sami Naicker was living he was paying to the temple Rs. 182-9-7 theba ance of the thirva exclusive of 5 per cent remitted for vicissitudes of season out of Rs. 192-3-5 the thirva proportionate to the said lands. After his death his son Venkatasubba Naicker was paying the said thirva to the plaintiff on account of the temple.