KATAMBERI CHUZHALI BHAGAVATI AMMA S OWNER, URALAN AND MANAGER SAMANTHAN KARAKKATTITATHIL KAMMARAN NAMBIAR (SINCE DECEASED) Vs. VALIA RAMUNNI, KARNAVAN AND MANAGER NOW THE SANTIKKARAN OF PARACHINIKKATAVATH MATTAPPURAKKAL MUTHAPPAN DEITY, STYLED AS MATAYAN

JUDGEMENT

(1.) The question raised in this appeal is whether the present suit is barred by res judicata by reason of the decree in O.S. No. 846 of 1923. The bar that is pleaded is not confined to any particular matter in issue but extends to the entire claim. The suit has been brought by one Rayarappan Nambiyar, who fills the dual position of (1) the karnavan of Karakath Idam and (2) the Uralan of Kadamberi Devaswom where the presiding deity is Bhagavathi; in other words, the plaintiff's right to hold the trusteeship of the temple arises from his being the manager of his tarwad. Several reliefs are claimed in the plaint over, what is alleged to be a subsidiary shrine known as Muttapan Devasthanam, under the control of one Valia Ramunni, the karnavan of a Thiya tarwad, and as such, the "Matayan" or the head of the shrine in question. 1 he plaintiff's case shortly is that the defendant shrine is a subsidiary temple owing allegiance to its suzerain - the Kadamberi Devaswom - and bound to render it homage inter alia by making certain recurring payments. There are some other reliefs which are claimed, to which it will become necessary to refer presently. The question is, whether either of the two grounds taken by the learned Advocate-General is well founded, namely, first that the parties to the present and the previous suit are different and secondly, that the previous suit was tried by a Court which had no jurisdiction to try it. As to the former contention, it is urged that in the present action the right put forward is that of the deity, whereas in the previous suit, the karnavan was asserting his private or individual right. The argument, however, proceeds upon a thorough misreading of the two plaints. There has been a disingenuous attempt in the plaint to make it appear that the present claim differs from the old one which however has not succeeded. In spite of the wilful confusion, that has been introduced, the two claims are not only substantially but identically the same. On the previous occasion, the trustee was described as the plaintiff, suing on behalf of the institution; in the present complaint, the institution figures as the plaintiff suing through its trustee. This is a distinction without a difference; even otherwise, almost every paragraph of the previous plaint shows, that the right put forward by Rayarappan Nambiar (the same person as the present plaintiff) was then, as now, on behalf of the devaswom and not in his capacity as the karnavan of his tarwad. The matter is so patent and so manifest that it would be a waste of time to refer in any detail to the relevant passages. Not only were these two very shrines the plaintiff and the defendant in the previous suit, but they happened to be represented by the same individuals as at present. I fail to see what principle can be deduced from either of the two cases cited by the learned Advocate-General, which can possibly be applied to the facts here. In the first case Pramatha Nath Mullick V/s. Pradyumna Kumar Mullick (1925) 49 M.L.J. 30 : L.R. 52 I.A. 245 : I.L.R. 52 Cal. 809 (P.C.) all that was held was, that a Hindu idol is a "juristic entity" and has a juridical status with the power of suing and being sued. The conception of a family idol as a movable chattel, capable of being treated as property, is not warranted by the authorities and is opposed to principle: that is, the gist of the decision. There was a dispute in regard to a right claimed by one of the parties, to remove the idol from the allotted place of worship, and the only matter decided was, that there was a broader question, which the action raised, than the mere establishment of individual rights, namely, that relating to the interests of the deity. It was therefore held that a disinterested third party, other than either of the contesting claimants, should act as the next friend of, and appear for, the idol. It is difficult to discover any principle laid down here applicable to the facts of the present case.

(2.) Nor does the second case cited Radha Binode Mandal V/s. Gopal Jiu Thakur (1927) 53 M.L.J. 123 : L.R. 54 I.A. 238 (P.C.) appear to have any application. The question turned entirely on the construction of the pleadings in the earlier litigation. Both the plaintiffs and the defendants had been described as the shebaits of the gods and the Judicial Committee naturally enough found it difficult to treat the idol as the party (p. 245). Their Lordships expressly declare that owing to the nature of the earlier litigation, it was not thought necessary to make the gods, the plaintiffs in the subsequent suit, parties to the previous suits (p. 246). The facts here as already shown are entirely different. The former suit as the present one, was filed on behalf of the Kadamberi Devaswom, and in both the suits, the plaintiff is virtually the goddess Bhagavathi, the deity in that temple. The contention therefore that the operation of res judicata is excluded by reason of the parties being different, entirely fails.

(3.) Now turning to the second contention, it is based on a totally wrong assumption. There is a relief claimed in the present plaint (that is the one material to the present contention), namely, that the defendant should be directed to surrender the land where the temple stands, along with the improvements effected thereon. In the plaint, the value of the buildings inclusive of the improvements, has been stated to be upwards of Rs. 13,000. There is a definite averment made in paragraph 3(vi) that the plaintiff is entitled to the improvements without being liable to pay for them. Now, the learned Advocate-General says that in the former suit also a similar claim had been made. There has been some debate as to the correct rendering of the relief No. (a) in the previous plaint (see p. 194, documents paper), but whichever of the two rival renderings is accepted, it is clear that there was no claim made in the earlier suit to the improvements. On the contrary, there is a definite offer in the former plaint to pay for the improvements; in the alternative, the plaint goes onto say that the defendants should be directed to demolish and remove the buildings which constitute the improvements. Surely, this cannot be construed as a claim to improvements, which naturally enough were not even valued in the plaint. Upon the claim made and upon the valuation given of the reliefs, the Court that had jurisdiction was the Munsiff's Court and the suit was rightly filed and tried by that Court. Now on these facts, it is perfectly obvious that the present claim to the improvements is barred either under Section 11, Explanation (4), Civil Procedure Code, or under Order 2, Rule 2. It is in order to get over this difficulty, that the learned Advocate- General has been constrained to contend - quite wrongly as I have said - that even in the previous plaint the improvements had been claimed. The next step in his argument is, that the former suit, understood as comprising a claim to the improvements, was beyond the pecuniary jurisdiction of the District Munsiff who tried it; the decision in such a suit is incompetent and cannot operate as res judicata.