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Judgment
Richard Couch, J. 1. This appeal arises out of proceedings in the execution of a decree of the High Court at Madras, made on the 23rd of October, 1888, in an appeal in which Gnana Sambandha, the Plaintiff in the suit, was Appellant, and the second Respondent Visvalinga Tambiran, the representative of Kumarasami Tambiran, the original Defendant in the suit, was Respondent. The suit related to two mutts (temples), one situated at Tiruppanandal and the other at Benares, and was brought by the Plaintiff as the representative for the time being of a religious institution called the Adhinam at Dharmapuram in the district of Tanjore. The Plaintiff''s case was that the properties in suit were the endowments founded in support of the mutts and various charities at Benares and other places, in the charge and under the management of the Tambirans or representatives of the mutt called the Benares Mutt at Tiruppanandal in the same district; that the last lawful manager of this mutt was one Ramalingam Tambiran, and upon his death a dispute arose in regard to the right of succession to the management. The plaint prayed for a declaration that the mutts at Tiruppanandal and Benares were subject to the control of the Plaintiff and his successors at Dharmapuram; that they were entitled to appoint and send Tambirans to manage them; that the Defendant''s succession was unlawful as he was not a Tambiran attached to the Adhinam at Dharmapuram, and was not appointed by the Plaintiff; and that the will executed by Ramalingam Tambiran in his favour had no legal force. The High Court decreed that the Appellant''s claim that the properties at Tiruppanandal and Benares belonged to the Adhinam at Dharmapuram and to the possession of those properties should be dismissed; and that his claim to a declaration of his right to appoint Tambirans to management at Tiruppanandal and Benares, and to a direction that possession of the said properties should be transferred to a Tambiran whom he might appoint, should also be dismissed. In other respects the decree of the Lower Court was reversed, and it was declared that the appointment of Kumarasami the original Defendant by Ramalingam as his junior and successor, and the will in favour of Kumarasami, were illegal, and they were set aside so far as they related to the mutts at Tiruppanandal and Benares and other subordinate mutts and their endowments. It was also declared that the Appellant was entitled as the head of the Dharmapuram Mutt to see that a competent Dharmapuram Tambiran was appointed as the head of the mutt at Tiruppanandal; that the Subordinate Judge of Kumbakonum, in order to fill up the then vacant office of Tambiran of the Tiruppanandal Mutt, should direct the Appellant, who was the Plaintiff in the suit, to name a Tambiran from among the Tambirans of his Adhinam competent to discharge the duties of the managing Tambiran of the Benares (Kasi) Mutt at Tiruppanandal; that if the Subordinate Judge saw no objection to the fitness of the person so named for the office aforesaid, he should appoint him as such managing Tambiran; but in case the Subordinate Judge should object to the person so named he should appoint a competent person of the Dharmapuram Adhinam as such managing Tambiran, and should thereupon direct the Appellant to invest him as usual and certify it; and that upon the investiture being certified, the Subordinate Judge was to place the person so appointed and invested in possession of the mutt, &c. 2. On the 21st of January, 1889, the Plaintiff in the suit, and Appellant in the High Court, applied to the Subordinate Judge for execution of the decree by a warrant for realisation of the costs awarded by it, and that further proceedings might be taken regarding the appointment of a Tambiran to the then vacant place in the Kasi (Benares) Mutt at Tiruppanandal, in accordance with the decree. Thereupon, on the 25th of January, the Subordinate Judge made an order directing the Petitioner to name a Tambiran from among the Tambirans of his Adhinam competent to discharge the duties, ten days being given for that purpose. 3. On the 11th of February, 1889, the Plaintiff presented a petition to the Subordinate Judge, praying that inasmuch as Ponnambala Tambiran, one of the Tambirans of his Adhinam, was a fit man for the vacant place, was competent to discharge the affairs thereof with efficiency, and was one of good character from among the Tambirans of his Adhinam, the Court would be pleased to appoint him to the vacant office. Upon this an order was made in these terms: "The Court has no means of testing the fitness of the Tambiran named except by inviting the opinion of the public about it. Therefore a notice will be put up at the Court-house calling upon the public interested in the well-being of the mutt at Tiruppanandal to give its opinion about the Tambiran named on Saturday, the 2nd of March, 1889." Accordingly a notice to that effect was, on the 15th of February, affixed in a conspicuous part of the Court-house. It may be doubted whether this was either a necessary or a wise proceeding on the part of the Subordinate Judge, leading, as it was sure to do, to agitation among the supporters of a rival candidate, and subjecting the appointment to something resembling popular election, which does not appear to be intended by the decree. 4. In the case for the Appellant it is stated that, in reply to this notice, a great number of petitions were forwarded to the Court, many of them expressing approval of the nomination of Ponnambala, others suggesting the names of other Tambirans as being in the opinion of the writers more suitable for the post. Of the latter class the majority were in favour of Karbar Saminadha Tambiran, at that time manager of the Dharmapuram Adhinam. Of the petitions opposed to the nomination seventy-four stated the preference of the Petitioners for some other nominee, but contained no allegation to the prejudice of Ponnambala; sixty-one contained a general statement of unfitness, but with no reason for it, and eleven charged him with misconduct. The accuracy of this statement in the Appellant''s case was not disputed by the Respondents'' counsel. 5. On the 18th of February, 1889, the Plaintiff in the suit and Appellant in the High Court, died, and was succeeded as the head of the Dharmapuram Adhinam by the first Respondent in the present appeal, who, on the 28th of February, petitioned the Court to admit him in the place of the deceased, and to take further proceedings. On the 15th of March he was ordered to be made the representative of the deceased Plaintiff. On the same day he presented a petition to the Court stating that Ponnambala was unlit to manage the properties of the Benares Mutt at Tiruppanandal, and that contrary to the decision he was a Tambiran who received kashayarn (a ceremony of initiation) from the Madura Adhinam, and praying that the Court would permit him to withdraw the petition submitted to the Court by the former Pandaran Sannadhi nominating Ponnambala Tambiran, and to appoint Karbar Saminadha Tambiran to the office. On the Kith of March the petition, and also one for the realisation of the costs, came on for hearing, the representative of the Defendant in the suit and Ponnambala being described as counter Petitioners in the title of the judgment. The former did not appear. Ponnambala appeared by two Vakils, and in the judgment it is said that on his behalf it was contended inter alia that the power of nomination could be exercised only once, that it was exercised by the late Pandara Sannadhi, and that under the decree of the High Court the representative of the Appellant had no power to make a fresh nomination unless directed by the Court. The Petitioner''s pleader contended that there was power to withdraw the nomination and to make a fresh nomination. The Subordinate Judge in his judgment, after saying it was suggested that matters would be greatly facilitated by his deciding first of all the question about the power of nomination, gave his reasons for holding that the power of nomination could be exercised only once. 6. Evidence was then gone into, the new head of the Dharmapuram Adhinam examining witnesses, including himself, to prove the charges against Ponnambala, and Ponnambala examining witnesses in answer, also including himself. The opponents of Ponnambala objected to his appointment on the grounds--(1.) That he was not ordained by the Dharmapuram Adhinam, and was not a Tambiran of the Dharmapuram Mutt, but that ho came from and. belonged to the Adhinam at Madura, (2.) That he proved himself unequal to discharge the less onerous and comparatively trifling duties of the Dharmapuram Mutt, to which he had been appointed within the last seven or eight years. Upon the latter charge, evidence was allowed to be given that he misconducted himself while so employed, and committed acts of malversation and breach of trust, and misappropriated money and things belonging to the mutt and its charities. The Subordinate Judge (the successor of the one who held that the nomination could not be withdrawn, and who had taken the depositions of all the Plaintiff''s witnesses upon the second question, except one who was examined before a commissioner), having taken the evidence of Ponnambala and his witnesses, held that there was no objection to his nomination, and confirmed it, and directed him to be invested and the investiture to be certified within two months from the date of his decree, and ordered that upon such investiture being certified, Ponnambala Tambiran should be put in possession of the Benares Mutt at Tiruppanandal, and the properties forming its endowments, and the endowments of the charities attached to it. 7. The new head of the Dharmapuram Adhinam, who was allowed to be the Plaintiff, appealed to the High Court, which ordered that the order of the Lower Court appointing Ponnambala Tambiran as the head of the mutt should be set aside, and the petitions be remanded, and that the Judge should proceed to inquire if there was any objection to the appointment of the person nominated by the then Plaintiff, and appoint him if there was no objection, and if his appointment was found on inquiry to be open to objection, to proceed to appoint a competent Tambiran to Tiruppanandal. The present appeal is brought by Ponnambala from that order. 8. The Solicitor-General, who appeared for the first and third Respondents, objected to the appeal being heard on the ground that Section 244 of the Civil Procedure Code (Act XIV. of 1882) was applicable, and that Ponnambala ought to have brought a separate suit. By an Order of Her Majesty in Council, dated the 9th of May, 1891, special leave to appeal against the order of the High Court was given, but the Respondents were to be at liberty to raise any questions regarding the competency of the appeal at the hearing thereof. Section 244 enacts that questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by order of the Court executing the decree, and not by separate suit. It would be a sufficient answer to this objection that it was not taken before the Subordinate Judge when he allowed Ponnambala to become a party to the proceedings and appear by a Vakil at the hearing, at which it was decided that the nomination could not be withdrawn. Nor was the objection taken in the grounds of appeal to the High Court. It is too late now to take it. But their Lordships cannot see what suit could be brought by Ponnambala. The nomination could not give a right to bring a suit, and whilst the decree of the High Court stood he had no title upon which to bring one to set aside that decree if such a kind of suit were maintainable. If he is not allowed to appeal against the order of the High Court he will be without any mode of relief. And the High Court say in their judgment that they considered he was a necessary party to the proceeding as the person to whose appointment the Appellant before them objected. Section 244 appears to be intended to prohibit a separate suit in cases where one might be brought, and to enable the question to be determined in the execution proceeding. It is not applicable to such a case as this. 9. The first question for consideration is: Could the new head of the Dharmapuram, Adhinam withdraw the nomination of his predecessor and make a new nomination? The answer to that depends upon the meaning of the decree. The declaration in it that the head of the Dharmapuram Adhinam was entitled to see that a competent Dharmapuram Tambiran was appointed as the head of the mutt at Tiruppanandal was relied on. What follows this declaration shows that it does not give him power to appoint. He is to nominate, and it is his duty to nominate a competent person. If he afterwards discovers any ground of unfitness in the person nominated he should inform the Subordinate Judge who is to decide whether there is any objection to the fitness of the person. The appointment is to be made only by the Subordinate Judge. He is to direct the head of the Adhinam to name a Tambiran, and when that is done is to decide upon his fitness. The person nominated has a right to have the decision of the Subordinate Judge, and would be deprived of it by the nomination being withdrawn and a new nomination being made. The petition before referred to asked that the Petitioner might be permitted to withdraw the nomination of Ponnambala and to nominate Saminadha Tambiran. This was not granted by the Subordinate Judge, but the High Court, if their Lordships rightly understand its judgment, appears to have held that until the Subordinate Judge acted upon the nomination there was a locus penitenlix, and he was entitled to withdraw it if in his opinion there was any valid objection to it, and therefore the Petitioner might withdraw it if there was any valid objection to it. Their Lordships do not concur in this construction of the decree. 10. There remain then two questions for determination: 1. Was Ponnambala a Tambiran of the Dharmapuram Mutt? 2. Was he unfit to be appointed Tambiran of the mutt at Tiruppanandal? The first witness was the then head of the Dharmapuram Adhinam, who petitioned to be allowed to withdraw the nomination of Ponnambala. He said that Ponnambala was removed from the Odakkam (an office) in the Dharmapuram Mutt for some wrongful acts committed by him in respect to cash and paddy. He used to visit Dharmapuram occasionally from Trichinopoly, where he held an office, and finding Ponnambala unemployed he asked him the reason. Ponnambala said he had committed some faults in respect of cash and paddy, and that the Pandara Sannadhi had removed him. The witness spoke to the Pandara Sannadhi himself, who said he had removed Ponnambala for wrongful acts committed by him in respect to cash and paddy. In answer to the Court, the witness said that the late Pandara Sannadhi did not think Ponnambala fit for the office of Tambiran of Tiruppanandal, and that he nominated him in consequence of the persuasion of persons whose names he gave, because it was thought he would act up to their wishes. In cross-examination he said that he had been to the Madura Adhinam, and saw Ponnambala there, and therefore he stated in his petition that Ponnambala had received his kashayam (the visible symbol of initiation) in the Madura Adhinam. He said there was some difference in the mode of dress adopted by the Tambirans of the Madura Adhinam and the Tambirans of the Dharmapuram Adhinam, and that Ponnambala had adopted the Dharmapuram style for ten or eleven years, ever since he came to the Dharmapuram Adhinam, and that the Dharmapuram Adhinam had a mutt at Madura. As to the faults committed in the Odakkam he said there was a general talk, that he had not up to that time inquired about particulars, and did not know what faults Ponnambala had committed in respect to cash and paddy, and there was no record to show that Ponnambala had committed faults in the Odakkam, and that he had been removed. The witness said he and three other Tambirans protested against the nomination; they told the Pandara Sannadhi that Ponnambala belonged to the Madura Adhinam; that it was not proper to appoint him to a big mutt like Tiruppanandal; and that the Karbar Tambiran should be appointed. This is the Tambiran who was nominated by the witness in his petition for withdrawal of the nomination of Ponnambala. Further on he said there were complaints about the management of Rajan Katlai some months before the Pandara Sannadhi'' s death; that Ponnambala had made large remissions of rent, and that he did not take any notice of the accounts showing less cultivation; there were no records about them. Why, it may be asked, did not the witness bring these complaints before the deceased Pandara Sannadhi when he made the protest? He appears to have made in his petition to the Court a grave charge of unfitness against Ponnambala upon vague and general statements, of which he had not at that time any evidence, and to have been influenced by a desire to have the other candidate appointed. The next witness, Venkatarama Aiyar had been an agent in the Dharmapuram Mutt for forty-seven or forty-eight years, and had known Ponnambala for ten or eleven years. He said he was a Tambiran of the Madura Adhinam. He said, "I asked him, and he said he had come from the Madura Adhinam. I have moved with him closely these ten or eleven years. He is not fit to manage the estate of the Tiruppanandal Mutt as the Tambiran thereof." He went on to say that Ponnambala was dismissed from the Odakkam for acts of malversation as regards paddy rice and cloths, and was unemployed for two or two and a half years; that he was afterwards sent for five or six months by the Pandara Sannadhi to assist the Katlai Tambiran at Tirubhuvanam who was ill, and was afterwards sent to Tiruvarur, where he had been for the last two years, and there had been frequent complaints that he did not manage the lands properly. He said, "The complaints existed from the time of the late Pandara Sannadhi." Their Lordships think that if there had been any malversation in the Odakkam which rendered Ponnambala unfit for employment he would not have been appointed to Tiruvarur or allowed to remain there for two years. In cross-examination the witness said, "From what Ponnambala Tambiran and other Tambirans told me, I said he belonged to the Madura Adhinam." As to the faults, as the witness called them, in the Odakkam, he said the Pandara Sannadhi held an inquiry, and called on Ponnambala for an explanation, and asked the witness and other agents to look into the accounts. They did so, and reported the matter to the Pandara Sannadhi, who did not press it. The next witness is Dharmalinga Pillai, who said he had been in the service of the mutt for twenty-two years. In considering the value of the evidence of agents or servants of the mutt it is to be observed that they were deposing in support of the case of the present head of it. This witness said Ponnambala was a Tambiran of the Madura Adhinam; it did not appear that he received Mantra Kashayam in the Dharmapuram Mutt. In cross-examination he said that when Ponnambala first arrived at Dharmapuram he was not dressed in the Dharmapuram style, and he asked him to what Adhinam he belonged, and he said to the Madura Adhinam. But the witness said, "When he changed his style of dress I did not ask him about it.... I do not know the reason for hie changing his style of dress. It is not usual for one to remain at the giving of Mantra Kashayam or Upadesam. Tambirans who received Mantra Kashayam used to tell me about it. As Ponnambala did not tell me about it, I thought he did not receive it at Dharmapuram." He said he was present when the Pandara Sannadhi inquired about the cash, cloths, and paddy missing, and from faults discovered against him in the Odakkam, and from complaints against him from Tiruvarur, he stated he was not fit to be appointed to Tiruppanandal. 11. The next witness was Tirumalai Pillai, also an agent in the Dharmapuram Mutt. He said Ponnambala committed some faults in the Odakkam, and the Pandara Sannadhi dismissed him; that he knew both the facts personally. This is all he said as to that charge. As to the Rajan Katlai he said two Brahmin agents attached to it represented to the Pandara Sannadhi "that Ponnambala had sold paddy without orders, and that he had made remissions in lease. They said that paddy was sold, and the proceeds were not brought to account, and that the yield was good, and there was no ground for remission at all. Pandara Sannadhi sent for Ponnambala. The agents said that the sale proceeds were carried towards the payment of debts duo to one Somasundara. This was what the accounts stated. They said Ponnambala said he had not committed any faults and that the accounts would support him." The accounts were not produced as they should have been. Without them this evidence is of no value. The next witness is Ramaswamy Aiyan, who was employed in the Rajan Katlai at Tiruvarur as the Attavani accountant. His charges against Ponnambala were that he expended money without Uthara chits (which are orders on the Shroff for disbursements of moneys, prepared by the witness and signed by the Tambiran); that when there were not Uthara chits Tambiran himself spent the money and the Shroff had no knowledge of it. He said Ponnambala wrote in the accounts some fictitious debts, and appropriated the sums to his own use; that the debts were written in the names of Somasundara Chetti and Tyagu Chetti. The witness also said that a sum of 100 and odd rupees, the produce of a sale, was not brought into account, and there was a remission to a lessee; that the Pandara Sannadhi directed the amount remitted to be collected, and as regards the matters not brought into account he said he would send final orders, but no such orders were received. Without the accounts the truthfulness of this witness could not be tested. He said he got Rs. 6 a month in the Rajan Katlai and "did not mention to any one else the said matters up to now," which is improbable if they were of any importance. The next witness is Ramaswamy Aiyar, one of the Brahmims who were said by a former witness to have made a complaint. He does not give any material evidence, and appears to have had a dispute with. Ponnambala about his pay. 12. The evidence of the remaining witnesses for the Plaintiff- with one exception, Vidilinga Tambiran, whose evidence need not be noticed-relates to the question whether Ponnambala was a Tambiran of Dharmapuram, and it will be better now to notice his witnesses in answer to the charges against him. He was first examined. He said that he was a native of Kallianipuram, and received Mantra Kashayam in Sivasilam. He denied that while he was doing duty as Odakkam Tambiran he was removed for any fault, or that the Pandara Sannadhi held an inquiry as to his having appropriated to his own use paddy, cloth, and cash; or that he was tried at Dharmapuram for any fault committed at Tiruvarur. He said in cross-examination that "orders were received that it was wrong to have granted a lease to the Maniagar of the village of Sakkramangalam... that it was wrong not to have collected 150 kalams of paddy out of the lease amount. The order to the effect that it was wrong to have granted remission of fifty kalams of paddy was received subsequent to the explanation sent by me to the Pandara Sannadhi." He also admitted that Uthara chits were not properly kept by him, and that they should be properly kept up. In the course of a long cross-examination he repeated that he was not dismissed from the Odakkam, and was not found fault with for stealing money and paddy, or punished for it. This examination was taken on the 11th of April, 1888, and it appears from the Judge''s diary that owing to his illness, and the Court being closed for recess, the further hearing was postponed till the 13th of September. On the 18th of September the witness was re-called, and examined by the Plaintiff''s pleader, when he said that he never made expense without issuing Uthara chits. He was then examined as to sums amounting to Rs. 200, credited in the accounts of Rajan Katlai under the name of Somasundari Chetti. He admitted that there was a man of that name at Dharmapuram, a cook in the mutt there, who was serving under him for a month or two, but he said he did not know who the Somasundari Chetti in the accounts was and did not inquire "until now." He said he knew the man; he was living at Tiruvarur; he kept no profession of any kind as far as he knew; he said he had a house; he must look to the accounts to see if there were any dealings with that man before he went to Rajan Katlai. He then spoke about credit in the name of Tayagu Chetti which he had been charged with. He said that one Tyagaraja Pillai and a Mudaliar kept a common shop at Tiruvarur; that the Kanakku Pillai used to borrow from him for their Katlai purposes and wanted to give credit in the name of Tiyagu Chetti, and he gave him leave to do so; that he knew Tyaraja Pillai who came to him to demand money due to him; that there was no man of the name of Tyagaraja Mudali at Tiruvarur, and he had made a mistake when he said before that the creditor was Tyagaraja Mudali; that the Judge was not well at the time, and he was told to answer readily and to the point, and so the mistake happened. The Judge''s diary in the record shows that he was ill at this time. This part of Ponnambala''s evidence appears to be what is referred to in the judgment of the High Court as "matters against him in evidence, which he ought to have explained, but has not explained satisfactorily." It is to be observed that the Plaintiff''s witnesses had been examined before the predecessor of the Subordinate Judge who gave the judgment, but Ponnambala was examined before that Judge, who did not express any dissatisfaction with his evidence. The other witnesses spoke about his being a Tambiran of Dharmapuram, except the last, V. Khrishna Aiyar, a vakil of the High Court. His evidence was that the nomination was made by the late Pandara Saimadhi after consideration of the merits and demerits of the Tambirans from whom the selection might be made, and with a desire to select one who might not be disapproved by the Court. From his evidence the nomination appears to have been honestly made, and not from any undue influence or pressure. 13. Some of the evidence for the Plaintiff on the latter question has been already noticed. Two remain to be mentioned. Subramania Mudaliar, who lived in the Tinnevelly district, and was one of the chief disciples of the Dharmapuram Adhinam, said that when Ponnambala was in the Odakkam, he told him he belonged to the Madura Matam (apparently meant for Adhinam) in reply to his questions where he came from, where he received his Kashayam, and what he was doing. He was then dressed in the Dhamapuram style. "From what Ponnambala told me I say he belongs to the Madura Adhinam. I have no other reason for saying that he is a Tambiran of the Madura Adhinam." He also said he told him he belonged to Panangudi. Theetharappa Mudali, who also lived at Tinnevelly and is one of the disciples of the Dharmapuram Mutt, and one of the petitioners for the appointment of the Saminadha Tambiran, said that the Dharmapuram Adhinam had a mutt at Sivasilam in the Tinnevelly district; that Ponnambala was a Tambiran of the Madura Adhinam and belonged to Panangudi in the Nanguneri Taluk; that Kallianpuram is near Sivasilam; there was a Kallianpuram Ponnambala, a Tambiran of Dharmapuram who was dead. In cross-examination the witness said the nominee Ponnambala told him about his native place; that he had belonged to Panangudi and had received his Kashayam in the Madura Mutt. He is the only witness who speaks about another Ponnambala. 14. The case of the nominee Ponnamhala was that he received his Kashyam at the mutt in Sivasilam, and did not belong to Fanangudi but to Kallianpuram. Three witnesses, members of his family residing in Kallianpuram, deposed that he got his Kashayam at the Dharmapuram Mutt at Sivasilam; he was then twenty or twenty-two years of age. Another witness, Chitambaranadha, a Tambiran of Dharmapuram, said that Ponnamhala got his Mantra Kashayam at Sivasilam; the witness was then present at Sivasilam outside the Pujamatam; that Ponnamhala came to Dharmapuram and was employed at the Odakkam. Ponnamhala was not asked in cross-examination or by his own pleader about the statements it had been said he had made that he came from the Madura Adhinam. This is a frequent omission in trials in India and no inference can fairly be drawn from it. Their Lordships cannot attach much weight to the evidence that Ponnamhala said he came from the Madura Adhinam. Assuming that the witnesses intended to speak the truth it is possible they may not have exactly recollected what was said. He may have said he came from Madura, which appears to be true, and it may have been supposed by the witnesses that he meant he came from the Madura Adhinam. Their Lordships do not give credit to the evidence that he belonged to Panangudi and that there was a Kallianpuram Ponnamhala who is dead. Upon the question whether the nominee Ponnamhala was a Tambiran of Dharmapuram the High Court was silent, but as they may have thought it was unnecessary to decide it, no inference can be drawn from their silence. Upon the questions of fact in the case their Lordships have come to the same conclusion as the Subordinate Judge, and they will humbly advise Her Majesty to reverse the order of the High Court, and to order that the appeal to it be dismissed with costs, and to affirm the order of the Subordinate Judge. The Respondent Sivagnana Desika Gnana will pay the costs of this appeal.