SRI RUNGACHARIAR Vs. RUNGASAMI BATTACHAR

JUDGEMENT

(1.) It will be well to consider first the memorandum of objections argued by the Advocate- General on behalf of the trustees. It is therein contended that the whole suit ought to have been dismissed on the ground that the Civil Court has no jurisdiction to determine the questions raised in it.

(2.) The plaint, however, showed a cause of action. It alleged that the defendants "wrongfully obstructed the plaintiffs from their performing, as usual, the services that should be done by them and from receiving the emoluments and honours." It is true that the trustees, for whom the Advocate-General appears, did, in a qualified way, admit in their written statement that most of the offices claimed by the plaintiffs were vested in them, but the archakas, the fifth and sixth defendants, denied this altogether and thus questions arose which required determination by the Civil Court in a proceeding to which the trustees were proper parties. It is clear that the suit was at any rate in part triable by the Civil Courts and that most of the declarations made by the District Munsif and the District Judge were required to protect the rights of the plaintiffs. The objection is principally to the declaration of the plaintiff's right to the position of first thirthamdurs," a position which it is urged is not that of a holder of an office. It was, however, not denied in the argument before us that the position of first thirtham," whatever it be, is held hereditarily by the plaintiffs family; and that being so, there is no sufficient reason to suppose that this declaration can do any harm to the trustees. It is further contended in the memorandum of objections that the District Munsif, whose decree the District Judge has left undisturbed in this particular, was wrong in awarding to the plaintiffs the emoluments withheld from them for some time. The argument is that as the District Munsif finds that one of the plaintiffs was guilty of misconduct, the plaintiffs must show that this is not bo, or cannot recover the emoluments. There are obvious answers to this contention. There is, in the first place, no reason shown why all the plaintiffs should be made to suffer for the misconduct of some only of their number. It is for the defendants to show why that should be, and they have not shown it and again it is not for the Court in the first instance, at any rate, to assess the penalty to be attached to a particular transgression. The punishment is according to the District Munsif to be awarded by the trustees, and this finding was not, we think, contested by the Advocate-General. It is also found that the trustees did not assess the penalty but that in fact one alone of them did so, and that he had no power to do so; this finding again was hardly disputed; the District Judge says nothing on this point, and it is not perhaps going too far to infer that the question was not pressed by the trustees before him, though it is raised in their appeal to him. However that be, it is not possible to hold that the District Munsif was wrong in declining to accept as a proper punishment for the misconduct of the fourth plaintiff the penalty illegally imposed by the second defendant.

(3.) The memorandum of objections, therefore, fails except as to the mandatory injunction against the trustees which perhaps was left in the decree by inadvertence. In paragraph 3 of his judgment the District Judge seems to overlook it, but however that be, it is not contended before us that it ought to remain in the decree it must be struck out.