Rajah M. Bhaskara Sethupathi And ... vs Narayanasamy Gurukkal And Ors. on 25 September, 1901
Equivalent citations: (1902) 12 MLJ 360
ORDER
1. In this petition the plaintiff and the defendants in, O.S. No. 33 of 1898 on the file of the Subordinate Judge's Court of Madura (East), now pending in appeal in this Court, state that they have entered into a compromise of the suit on certain stated terms and ask that the agreement may bo recorded and a decree passed in its terms in lieu of the decree passed by the Subordinate Judge in the suit. The petition is made under Section 375 of the Code of Civil Procedure which provides as follows:- "If a suit be adjusted wholly or in part by any lawful agreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the court shall pass a decree in accordance therewith so far as it relates to the suit, and such decree shall be final so far as relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction."2. The plaintiff brought the suit in his representative character as the trustee of a certain temple, on behalf of the general body of
worshippers of the temple, and when it was known that he had entered into a compromise with the defendants, three of the worshippers on whose behalf he had sued, applied (C.M.P. Nos. 603, 604, 605, 606, 637 and 638 of 1901) to this court to be joined with him as co-plaintiffs in the suit, in order that they might oppose the present petition. The defendants opposed their application, but in our order of the 18th instant we directed them to be joined as co-plaintiffs on certain terms. They now oppose the present petition, and the1 plaintiff himself, through his counsel, opposes his own petition, and expresses his desire to withdraw from the compromise. The defendants, on the other hand, desire to enforce the compromise and claim a decree in accordance with it.(maraththamizhar senai)
3. The mere withdrawal of the original plaintiff, who signed the compromise, would, by itself, be no ground for refusing to give a decree in accordance with it. Karuppan v. Ramasami I.L.R. 8 M. 482 and Appasami v. Manikam I.L.R. 9 M. 103, but both the original plaintiff and co-plaintiffs subsequently added, contend inter alia that the compromise is not a lawful one, and that for this reason and also because the co-plain-tiffs have not joined in it the court ought not to act upon it.
4. The co-plaintiffs have filed all affidavit alleging corruption on the part of the original plaintiff and other facts in order to show that the compromise is unlawful. The defendants asked for time to answer this affidavit, but we are of opinion that the petition can be disposed of on the admitted facts, and without reference to the disputed allegations of the affidavit.
5. The fundamental question is whether the compromise is a "lawful" one within the meaning of Section 375, Code of Civil Procedure, and in order to determine this, it is necessary to consider the facts of the litigation, the terms of the compromise, and the circumstances under which it was entered into. The defendants belong to the caste of Shanars. The disputes between the Shanars and Anti-Shanars with respect to the claim of the Shanars to enter the plaint temple and other Hindu temples were of some standing and led to serious riots, with much loss of life and property. The plaintiff, as trustee of the temple, filed the suit for a declaration that neither the defendants nor other Shanars were entitled to enter the plaint temple and asking for an injunction and for damages to defray the cost of purificatory ceremonies necessitated by the defendants having unlawfully entered the temple and defiled it. Issues were framed with regard to the alleged rights of the defendants and were enquired into at great length, some 133 Witnesses being examined and over 100 documents exhibited, and after a trial which lasted some three months and involved much expense, the Subordinate Judge found " that the defendants have not been allowed to use the plaint temple in the past for worship, and that the custom set up by them in support of the right of entry hag not been made out; and that the defendants belong to a class which under custom and the Shastras are precluded from entering the plaint temple." He therefore gave tin plaintiff the declaration and injunction asked for and a decree for Rs. 500 for purificatory ceremonies. The plaintiff, representing the Anti-Shanars, was thus victorious all along the line. In the present proposed compromise, he gives up everything and more than everything for which he has hitherto strenuously and successfully contender on behalf of those opposed to the pretensions of the Shanars.
6. The compromise recites that "the plaintiff on full and farther enquiry is satisfied that, as a matter of fact, the defendants and their caste people have enjoyed the right of access to, and of worshipping in, the temples of Ramnad Zemindari, including the plaint temple at Kamudi in the same manner and to the same extent as the Vellala, Chetti and other Sudra sects of the Hindu community * * *, and whereas, plaintiff is advised and instructed that according to the Hindu Shastras the people of defendants' caste are entitled to the said right of access and worship with respect to all Hindu temples, and whereas the plaintiff has ascertained that the sentiments of the general body of the Hindu community are in favour of the defendants' caste people exercising their said right of access and worship in respect of all Hindu temples." The plaintiff then agrees to allow the defendants and their caste people the same rights as other Sudra sects of the Hindu community in the plaint temple, and he gives up the damages awarded to him.
7. Considering the evidence on the record as to the manner in which the claims of the Shanars are viewed by the non-Shanar castes, it is not easy to reconcile this volte face with bona-fides on the part of the plaintiff.
8. The petition recites that the change of view is the result of "full and further enquiry," but there is nothing to show how or when this was made, and the fact that 1st plaintiff now desires to withdraw from the compromise goes far to show that the allegation is without foundation. But even if the proposal to compromise w ere the result of an honest change of view on the part of the 1st plaintiff; that would not, in our opinion, affect his power to enter into such, a compromise. In our opinion the proposed compromise must be regarded as essentially a breach of trust on the plaintiff's part. He is not acting in this matter for himself alone, nor is he dealing with his own property. He is acting for the general body of worshippers in the temple, and he is dealing with what are matters' of the most vital interest to them.
9. It has been judicially established before the Subordinate Judge that the defendants "belong to a class which under custom and the Shastras are prohibited from entering the plaint temple," and their having done so caused defilement which necessitated purificatory (sic) emonies.
10. That finding is binding on the plaintiff as well as the defend (sic) and ho cannot take upon himself to say I have made further enquiries. I am satisfied that the finding of the court is wrong I shall, therefore, allow the Shanars to enter the temple."
12. These words, no doubt, were (sic)ed with reference to the regulation of religious trusts in England by tire Court of Chancery, but we apprehend that, mutatis mutandis, the court will be guided by the same principles in this country. Where an institution exists for the purpose of religious worship but the exact form of worship or the class, for whose benefit it was established, cannot be discovered from the instrument creating the trust, (or where, as in the present case, there is no such instrument) the court can find no other means of deciding those questions than through the medium of an enquiry into what has been the usage of the worshippers in respect thereto, and, if the usage is a lawful one, it is the duty of the court to support that usage on the suit, legally instituted, of any person interested. It is not in the power of individuals having the management of the institution to alter the purpose for which it was founded, or to say to the other worshippers we "have changed our opinions, and you who resort to this place for the purpose of worshipping in the customary manner, shall no longer enjoy the benefit intended for you unless you conform to the alteration which has taken place in our opinions, even to the extent of submitting to the presence of other worshippers who are prohibited by custom and the Shastras from entering into the temple." It is not in the power of any trustee to say this to the other worshippers in a temple. On the contrary it is the duty of the trustee to maintain the customary usage of the institution, and if he fails to do so, he is, in our opinion, guilty of a breach of trust and still more so, if he deliberately attempts to effect a vital change of usage and to make it binding on the worshippers by obtaining a decree of the court to establish it.
13. The defendants, however, contend that as the decree of the Subordinate Judge in this case is under appeal, the appeal opens up the whole question as to whether the Shanars are, or we not, prohibited from entering into, and worshipping in the temple, and there is no binding decision as to what the usage is, and therefore no broach of trust on the 1st plaintiff's part in making the agreement to admit the Shanars to the temple. This contention it seems to us, rests on a fallacy, and is invalid. The appeal, no doubt, opens up the whole question for the decision of the appellate court, but pending that decision, the decree of the Subordinate Judge does not cease to be binding on the parties. Pending that decision they are just as much bound by the decree as if there was "no appeal. In view, then,' of the finding of the Subordinate Judge that the Shanars are prohibited by custom and by the Shastras from entering the plaint temple, we must hold that the proposed compromise by the 1st plaintiff involves a breach of trust on his part, and is therefore not a lawful compromise within the meaning of Section 375 of the Code of Civil Procedure. We, therefore, dismiss the petition. The 1st plaintiff and the defendants will bear their own costs respectively, and they will pay the costs of the co-plaintiffs in this petition.
-maraththamizhar senai
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