V K KELU ACHAN Vs. CSSIVARAMA PATTAR KARIKAR

JUDGEMENT

(1.) This is an appeal from the judgment of the Sub Court, Palghat in a suit under Section 92, Civil P.C., to remove the defendants from the trusteeship of the plaint temple and to prescribe a scheme for its management. The temple is that of Viswanathaswami. situated at the side of the Kalpathi river in Palghat. Admittedly it has been for a long time in the management of the defendants edom which is the Valia, Konikkal edom. Defendant 1 was sued, originally as the karnavan of that edom and defendant 2 as the actual manager of the temple affairs appointed as such by a tarwad karar. During the course of the suit, in July 1922, defendant 2 died, and defendant 1 succeeded him in the management of the temple. Defendant 1 therefore before us holds the double position of the karnavan of the Edom and the manager of the temple. Defendant 3 was added as the senior anandravan of the tarwad on the death of defendant 2. The plaintiffs are representative Brahmins from four villages, which lie round about the temple, from, which the officiating priests of the temple are drawn. They are in origin. East Coast Pattar Brahmins and not Nambudris of the West Coast. They are-representative worshippers and sue as. such. The claim in the plaint that the trusteeship was vested in the permanent residents of these villages and that the defendants edom has been managing only with their permission and subject, to their control. This was a subsidiary, issue to the main important issue,, namely, whether the temple is a public or a private one. Plaintiffs contend that it is public; the defendants that is it a. purely private institution in which the public have neither interests nor rights This was the first issue in the case. Issues 2, 3 and 4 are not pressed here. Issues 5 and 6 relate to specific charges of breaches of trust and issue 7 to the framing of a scheme. We shall take up issue 1 and before we come to discuss it one or two general remarks fall to be, made.

(2.) First we must rid ourselves of any notion that the idea of a private temple-is foreign to, or the fact of a private temple uncommon in, the Malabar-country. With its large family corporations or tarwads numbering hundreds of individuals it would be a very natural thing if such a corporation should establish and maintain a private temple for the use of themselves; and this in fact has often happened, as stated in most treatises on Malabar law and polity. Cases have also come up before this Court from the West Coast in which both sides have admitted a particular institution to be a private temple: see Vegnarama Dikshatar V/s. Gopala Pattar [1918] 8 M.L.W. 357, Raim Nambiar V/s. Narayana Nambiar , and Appu Pattar v. Kurumba Umma . But having premised this caution we must add there is certainly no presumption of law or fact that a temple in Malabar is either public or private. It will depend on the facts proved in each case. In our view it follows from this that evidence of comparison of the architecture, ritual, processions, gods, etc., in this temple with those of other temples either on the West Coast or elsewhere is not only irrelevant but may be misleading, and the Subordinate Judge has not sufficiently guarded against this. It is true that he ruled out, quite properly, by his order dated 16 October 1922, during the examination of D. W. 14, the first witness examined by this Judge, such comparative evidence regarding, for example the size of the lingam, prakarams, mantapams, Sri koils, Vigrahams, car and ear festivals, but unfortunately in judgment he has not carried out his own principle, and has relied, for example, on the size of the lingam, the form of puja, the number of times the puja is celebrated in the temple, the ritual and the architectural style as compared with those in other temples: see paras 9, 33, 40 and 51 of his judgment. To admit evidence of this sort is merely to add a further element of uncertainty to the case.

(3.) Whether other temples are public or private has to be decided on the facts of their own user and dedication, and in the last resort can be decided only by a Court of law in an action such as the present. And a Judge is not justified in assuming from his own knowledge or in inferring from the mere opinion of witnesses that such tad such temple put forward for purposes of comparison is public or is private. Public temples may have features reproduced in private temples and vice versa. To admit evidence that this feature of temple A or that feature of temple B appears or does not appear in the plaint temple only lays upon the Court the further difficult and irrelevant task of deciding whether temple A and temple B are public or private, when temples A and B are not at all concerned in this case or with the evidence given in it; and it is merely calling on the parties to support a case already uncertain by calling in aid examples more uncertain still.