JUDGMENT

Sadasiva Aiyer, J. — The plaintiffs are the appellants. They brought this suit for the following reliefs:—

(a) For a declaration that the 1st defendant has not been duly elected to the office of Trustee in the Triplicane Parthasarathi Swami Temple:

(b) For an injunction directed to the 1st defendant prohibiting him from doing the duties of the office:

(c) For an injunction to the two other trustees of the temple (Defendants 2nd and 3rd) prohibiting them from associating the 1st defendant with themselves in performing the duties of the Trustee: and

(d) For certain supplementary reliefs.

The election for the vacancy in the trustee's office was held within the temple precincts on the 13th August 1911 (a Sunday) in accordance with the scheme settled by Mr. Justice Best in May 1895 in C.S No. 161 of 1891. The portions of that scheme material for the decision of the present suit might be thus set out.

Paragraph 4.—All persons shall be entitled to vote who shall be of the Tengalai Sect of the male sex of the age of 21 years and upwards resident in Triplicane within certain boundaries.

Paragraph 12.—When a trustee's vacancy occurs, the election shall be held by the surviving Trustees or Trustee at the said Temple from 6 A.M to 7 P.M

Paragraph 13—Every voter shall receive at the polling station and hand in to the said surviving Trustees or Trustee a voting paper with the name of the candidate voted for. Such paper shall be signed or marked by the voter.

Paragraph 15:—The surviving Trustees or Trustee shall receive and count all votes at the close of the election in the presence of such headmen as may choose to be present at such receipt and counting. The President (that is, the senior of the surviving Dharmakartas) shall immediately declare the name of the person who shall have received the largest number of votes and shall publish the result of such election by affixing a notice signed by himself to each of the two gates of the said Temple and thereupon the person so declared shall be deemed to be duly appointed and to be a Dharmakarta.

Paragraph 16:—Any person whose name is in the voter's list shall also be entitled to bring instances of personation to the notice of the surviving Dharmakartas, provided that no such objection shall be taken after the voting paper has been once accepted and passed by the surviving Dharmakartas.

Paragraph 17:—On any objection being taken as to false personation, the surviving Dharmakartas shall mark such voting paper and shall enquire into the matter and shall either allow or disallow such votes at their discretion and shall state and sign each such objection with their decision thereon.

The objections pressed before us to the election of the 1st defendant are: (1) The voting of the 13th August 1911 began after 6 A.M and ended before 7 P.M

(2) At the counting of the votes, the 2nd defendant (one of the two surviving trustees), was not present.

(3) The first defendant's agents bribed a large number of voters who voted for the 1st defendant.

(4) The 1st defendant and his agents abetted false personation of dead persons as voters.

(5) The 1st defendant and his agents abetted personation of absentee voters.

(6) False personation votes were so numerous that but for it the 1st defendant could not have won the majority.

(7) Many persons entitled to vote were deprived of their franchise by being told that their names had already been ticked off and that they should be deemed to have voted.

(8) The defendants 2 and 3 (surviving Trustees), of whom the 3rd defendant was the President, neglected to take note of the objections regarding identity and to give decisions.

(9) In the case of numerous illiterate voters the voting papers were not marked by the voters.

(10) The Temple Amin Ramanujachari, 1st defendant's cousin, put into the voting box a large bundle of voting cards supposed to contain names of voters. None of those voters came to the polling station or signed those cards in the presence of the polling officers. The number of cards so thrown in was about 50 or 60 in favour of the 1st defendant.

I might at once state that I respectfully agree with the learned trial Judge in most of his conclusions on these ten points.

On the first point, I find on the evidence that the surviving Trustees were ready at 6 A.M to begin the election and that no voter was prevented from voting at 6 A.M, though the first vote was recorded at about 6-15 A.M, as the President and the representatives of the various candidates were making arrangements to secure the due conduct of the election. As regards the closing hour, I am satisfied that the doors were not closed before 7 P.M

As regards the second objection I am satisfied on the evidence that the 2nd defendant, who is now dead and who was a partisan of the unsuccessful candidate Veeraraghavachari (the rival of the 1st defendant), left the place after 7 P.M and after the counting began, because he knew even before the counting that his candidate was in a minority and because he (the 2nd defendant) was an old and infirm man who was tired through a long sitting during an excited, hotly contested, election. To make the presence of an unwilling Trustee at the final counting, an indispensable mandatory condition to the validity of an election would stultify the whole scheme and I am clear that it is only a directory provision.

As regards the third objection I am unable to believe any of the witnesses who speak either about the bribery of particular voters or about the prevalence of general bribery. As the learned trial Judge has remarked, it is so easy to manufacture evidence of this kind. No doubt, Prasanna Raghavachary (an old election war horse as Mr. T. Rangachari styled him) must have taken a great deal of interest in convassing for votes on behalf of the 1st defendant. No doubt also, the presence of a large number of illiterate voters would make it easy to secure votes by bribes. If, on account of this latter fact, oral evidence of however weak a kind, about bribery having taken place, should be believed, then in every election under the scheme, it must be found that bribery has taken place, as evidence not less weak than that given in this suit is almost sure to be available to the defeated candidate and his friends. I agree, therefore, with the trial Judge that the court cannot take any account, of surmises of this kind. That many voters got free rides in jutkas to the voting place at the expense of the 1st defendant is not denied. No case has been, cited to us in which the fact of certain voters having been carried to the voting booth at the expense of a candidate has been, by itself, held to vitiate the election Krishnaswami Ayyangar v. Sivaswami Udayar turned upon the construction of Rule 19 of the Rules framed by the Local Government for the conduct of elections under Sect. 7 of the Religious Endowment Act, XX of 1863. That R. 19 provides that a candidate was disqualified to be a member of the committee if he had given “consideration” in return for a vote. As the candidate in that case admitted that he spent money in paying his voters train-fare, cart-hire, etc., the learned Judges held it proved that he had given some other consideration to the voters besides the expenses of cart-hire and train-fare, and that he was, therefore, disqualified. I must state that I not only agree with the trial Judge that the plaintiffs have failed to prove bribery; I go further and hold that, in my opinion, the evidence tendered by the plaintiffs on this matter is false.

Coming to the fourth question, there is no reliable evidence that any dead voter was personated except one Nagappa Maistry who is proved to have died in April 1911, three and half months before the election took place. The 1st defendant's younger brother and agent, Bashyam Iyengar, says that there was another living voter Nagappa Maistry whose where-abouts are now not known. I am unable to believe him. I have little doubt that somebody, who cannot be now Identified, personated the dead Nagappa Maistry and voted at the election. There is no proof, however, that the 1st defendant's brother had induced that unknown person to personate the dead Nagappa Maistry. Even if the 1st defendant's brother had done so, there is absolutely no proof that 1st defendant did so or had authorised his brother to do so. The only legal result is that the voting card alleged to be signed by Nagappa Maistry should be discarded and I do not think that the whole election becomes invalid on that account. The scheme of 1895 does not state that if false personations are proved at an election, the election should be deemed void on that ground alone.

As a good deal of argument was directed to the point, I shall say a few further words about it. I am clear that the Common Law of England relating to Parliamentary elections cannot govern the decision in this case which relates to the election of a temple trustee, though, of course, wherever the rules of that law are in conformity with “Justice, equity, and good conscience” they might be referred to for the mental satisfaction of the Judge in India who finds that his decision based on justice, equity and good conscience happens to be also in accordance with those Parlimentary Common Law rules. Sect. 18 of the Charter Act of 1862 and Sect. 19 of the Charter Act of 1865 ordain that the High Court in the exercise of its ordinary original jurisdiction shall apply such law or equity which would have been aplied by the Supreme Court at Madras whose powers became vested in the High Court. The Charter Act of the Supreme Court, cl. 26, provided that judgment should be given according to “justice and right.” It was contended by Mr. T. R. Ramachandra Aiyar, Vakil for the appellants, that according to the English Parliamentary Common Law, any act of fraud or corruption brought home to a candidate or his agent invalidates a parliamentary election. I shall assume without deciding that it is “just and right” so far as the candidate himself is concerned, to disqualify him, if at a temple election he had himself been directly guilty of fraud or corruption. But I am not prepared to hold that, because the 1st defendant's brother, acting in the 1st defendant's interests, asked somebody to personate a dead voter, whose name, by mistake, continued to be in the list of voters, it is just or right to disqualify the 1st defendant, without proof that he authorized or ratified his brother's act. I think that while it is “right and just” to treat that vote as not to be counted in the 1st defendant's favour, it is not right and just to go further. Attainment of substantial justice is stated to be the end which the Supreme Court ought to have in view. (See Sect. 22 of the Supreme Court's Charter of 1800). I am clear that the speedy attainment of substantial justice would not be promoted if the election of a temple trustee under the scheme of 1895 was to be set aside on the sole ground that an agent of the successful candidate, without authority from the candidate, abetted a false personation which could have had no effect upon the result of the election. In this view, I think it will only lead to confusion if I refer in detail to the numerous cases quoted before us or to the provisions of the numerous Corrupt Practices Acts passed in England.

I shall make only one or two quotations as regards the English and American practice. “Where an election appears to have been fairly and honestly conducted, it will not be invalidated by mere irregularities which are not shown to have affected the result, for, in the absence of fraud, the Courts are disposed to give effect to elections when possible. And it has even been held that gross irregularities, not amounting to fraud, do not vitiate an election. The power to throw out an entire decision is one which ought to be exercised with the greatest care and only under circumstances which demonstrate beyond all reasonable doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatever, or where the great body of the voters have been prevented by violence, intimidation and threats from exercising their franchise.” Cyclopædia of Law and Procedure, Vol. 15, pages 372 and 373.

“In Belfast (1886), 4 O’ M. and H. 108, thirteen cases of personation were proved, but the Court refused to avoid the election, because none of them were brought home to the respondent or his agents, and intimated that there was no authority that an election would be avoided at common law for general personation.” Rogers on Elections, Vol. 2, page 374.

In the present case the 1st defendant got 654 votes out of 1354 voting cards placed in the poll box, while Veeraraghavachary got only 532 votes. Rejecting the voting card alleged to be Nagappa Maistry's voting card, the 1st defendant had still a majority of over 120 over Veeraraghavachary. (It is unnecessary to refer to votes cast for the two other candidates as the two together got less than 200 votes).

Coming to the fifth objection, I hold on the evidence that it is not proved that any absentee voter was personated, or that the is defendant's agent abetted any such false personation. The trial Judge seems to have held that the personation of one Bashyam Iyengar by another Bashyam Iyengar was proved by the evidence. I find myself unable to agree that that personation has been proved. I see no sufficient reason not to accept the evidence of D. W. 5, who states that his son-in-law Bashyam was not a voter as he had gone to Oudh about a year before the election and that the Bashyam Iyengar who did vote was residing in his house then and was a voter then.

As I have found that there was only one case of personation of a dead voter, the sixth contention, namely, that the false personation votes were so numerous that but for it the 1st defendant could not have won the majority, falls to the ground.

We come to the seventh objection, which is that many persons entitled to vote were deprived of their franchise by being told that their names had already been ticked off. Under the scheme (paragraph 16) after the voting paper has been once “accepted and passed” by the surviving Dharmakartas no objection could be taken that a voting paper was signed by a person other than the voter mentioned in it. I think that that is the reasonable meaning of cl. 16. The judgment in pursuance of which that scheme was drafted is that of Collins, C. J., and Parker, J., in Appeal No. 5 of 1895 and it contains the following passages:— “It may be safely left to the Dharmakartas to decide who are members of the Tengalai sect entitled to vote.” “The headman will be useful in identifying voters.” That judgment further deprecates “delay and expense in the conduct of the election” and hence disapproved of the suggestion that some independent person appointed by the Court should be present at the election. The learned Judges then say: “The scheme should be self-working, if possible” and “it is better to trust to the good sense and right feeling of the Dharmakartas and headman to show it a fair working trial,” Having also in view the 17th paragraph of the scheme, which provides that the surviving Dharmakartas are at their “discretion” to decide whether there had been false personation (I take this to mean that their dicision to the best of their judgment, after honestly and summarily enquiring into the matter, shall be final) and having further regard to Sect. 15 of the scheme which provides for the presence of the caste headmen when the Dharmakartas receive each vote, before accepting and passing it (or before rejecting it on objections), I agree with the learned trial Judge that the intention of the scheme decree was that it is not open to question the validity of a vote passed by the trustees without objection having been raised at the time of their receiving it and that it is not open to question the decisions given honestly on the objections raised by the surviving trustees by any proceedings in Court. This conclusion is supported in my opinion, by the final words of paragraph 15 of the scheme which states that the person declared at the end of the voting day to have been elected should be “deemed to be” a Dharmakarta of the temple. Even if I am wrong in the above opinion and even if the persons who afterwards wanted to vote and who were told that their names had been ticked off, would have given their votes to Veeraraghavachari and had really not voted before (it will be seen I am making here two large presumptions in favour of Veeraraghavachari) it has not been shown that it would have affected the result which was in favour of the 1st defendant.

Coming to the 8th objection, there was no doubt a serious irregularity committed by the defendants 2 and 3 in not taking notes of the objections made at the times of their receiving the votes, but most of the objections are proved to have been at once withdrawn. However, cl. 17 of the scheme does require the surviving Dharmakartas to state and sign each objection with their decision. As I have already held that their decision is final, if come to honestly, the requirement that they should state the objection and their decision in writing can only have been intended for the purpose of its evidentiary value in case their decision is attacked as dishonest in a subsequent suit. I agree with the trial Judge that the 3rd defendant was thoroughly impartial in his conduct of the election and that his decisions on the objections raised (which decisions according to my construction of the pleadings in this case were concurred in by the 2nd defendant) were honestly come to after summary enquiry on the spot, which is all that, in my opinion is provided for in the scheme and that the omission (though it is a serious irregularity) to record the objections and decisions where the objections were disallowed, did not invalidate the election. I would, however, give a warning to the trustees for their guidance in subsequent elections that, in cases of objections which are pressed, they would consult their own interest and the interests of the Devasthanam by noting the objections and the decisions at once as they ought to do according to the scheme. A book containing four columns for entering the name and the number of the voter whose alleged vote is objected to, the nature of the objection, the person or persons objecting and the decision signed by the surviving Dharmakartas can be easily opened. The ninth objection as to the voting papers not having been marked by the voters as provided for in paragraph 13 of the scheme, does not require serious notice. If an illiterate voter's name is written with his consent in the presence of the Polling Officers, it is in the eye of the law of the same effect as a literate voter himself signing and as the paper should only be “signed or marked” by the voter, the signature put in by his authorized agent in his presence satisfies the requirements of the clause.

The tenth and last objection as to a large number of voting cards having been placed in the voting box in the absence of the voters is not proved by any evidence worth the name. What happened was that 9 archakas of the temple who were also voters were allowed to remain just outside the polling enclosure but within the sight of the Polling Officers and fill up their voting cards from there and to hand them into the temple peon (or as one witness says to one of themselves) who brought and handed them to the President. There was no doubt a slight irregularity here, as the 13th clause of the scheme provides for every voter handing in his voting paper directly to the Dharmakartas. Of course, if there are two surviving Dharmakartas, one voting paper cannot be handed in to both the Dharmakartas simultaneously. I think that if the voter hands it in to somebody in the presence of Dharmakartas and if that person at once hands it in to the presiding Dharmakartas, it substantially complies with the cl. 13 of the scheme. Having disposed of all the objections, I shall make a few general remarks with reference to the observations made during the course of the arguments by the learned vakils.

Mr. T. R. Ramachandra Aiyar expressed surprise that any Hindu should canvass for votes to obtain the office of trustee of a temple. It is true that according to archaic Hindu notions one ought not at all to be anxious for a Dharmakarta's place. The Vttara Kanda of the Ramayana contains several chapters which are not to be found in many editions and are believed by learned scholars (from their style and the character of the stones) to be later mythological additions to the original work of Valmiki Rishi. In one of the chapters (Chapter 69) there is a story of a man having been born in the canine species because he as a Patriarch (Kulapathi, had had, in his former life, to do the duties of a temple trustee. The man in the animal body was wantonly struck and injured in that body by a Bhikshu. The animal took its revenge by persuading Sree Ramachandra to appoint his enemy as a Kulapathy and the reason the animal, which remembered its past birth, gave was that his enemy was sure to suffer future torments in hell, it being • impossible for the manager of temple properties, however honest he may be, to escape from grievous sin, as a superhuman standard of diligence is required of a temple trustee. But in these days, those archaic notions, owing (it may be as Mr. T. R. Ramachandra Aiyar said) to the decay of true religion in the minds of modern Hindus, do not prevail and Courts cannot disqualify a man merely because he was anxious to become the trustee of a temple, trusteeship being now a coveted and honourable civil office, which gives influence and power in the community.

As regards the scheme itself, the extreme democratic view that education and character should have no weight, that the vote of the most ignorant or the least honest should have the same effect as the vote of the most highly cultured or the most saintly person is, no doubt, repugnant to the Hindu Shastras. The Hindu society from the second age has been based upon a hierarchical sysetm in which the character and learning of the persons giving opinions were to be given much more weight than the numerical strength of such persons. In the system of Government also, according to Hindu notions, there was a heirarchical gradation, the headman of 100 villages was placed over the headman of 20 villages, who was placed over the headman of 10 villages, who, in his turn, was placed over the headman of one village. (See the 7th Chapter of Manu, slokas 115 to 117). I might, therefore, be permitted to suggest that bribery and charges of bribery at elections might be considerably minimised, if Tengalais, who cannot sign their names, be debarred from noting at the elections for a Dharmakarta's place. In Athan Sadagopa Chariar Swamigal v. Elayvalli Srinivasa Chariar, I have mentioned that there are thirty-two sins which should not be committed in a temple and I was, therefore, at first inclined to suggest that as the holding of elections within the temple premises is certain to lead to the commission of several of these sins, the scheme might be modified by providing for the holding of elections in some other place. But as the sins committed during the heat of the elections are not more heinous than what are being committed in these modern days almost daily within most temples and as convenience requires that the election should be held within the temple precincts, I shall drop that suggestion.

Mr. T. R. Ramachandra Aiyar in the course of his arguments rather jestingly referred to an appeal at once in the temple to the presiding Deity from the decision of the trustees on the question of the irregularities in the election proceedings'. Assuming that the Deity has not left the precincts of modern temples (which the Deity ought to have done long ago according to the Thanthra Shastras, owing to the traffickings and the sins of commission and omission now going on in most temples) the holding of the election in the temple precincts, where some of the voters at least would be afraid of committing glaring sins, may lead to a less number of malpractices than if the election were held in some other place,

In the result, I would dismiss the appeal. The 3rd defendant will take his costs out of the temple funds. The 1st defendent will get his costs from the plaintiffs, who will bear their own costs.

Napier, J.—This is an appeal from the judgment of the Chief Justice (then Mr. Justice Wallis) dismissing a suit to declare that a certain election for the vacant office of Dharmakarta of the Sri Parthasarathy Swami Temple, Triplicane, was null and void, The plaintiffs are worshippers and voters. The 1st defendant is the person elected. The 2nd and 3rd defendants are the surviving Dharmakartas; and the 4th defendant is a Dharmakarta elected to fill a subsequent vacancy. The allegations on which the suit is founded are to be found in paragraph 15 of the plaint and fall under eleven heads. The first two relate to the time when the polling commenced and was concluded. The 7th complains that the illiterate voters did not affix their marks to their voting papers with their own hand. The 8th charges that the acting Amin brought a large number of voting cards and threw them into the voting box to swell the votes in favour of the 1st defendant. The 9th charges that cards forged by the 1st defendant were used instead of the proper voting cards. The 10th alleges that persons who desired to vote for other candidates were kept away by the intimidation of partisans and agents of the 1st defendant, and the last that the 3rd defendant conspired with the 1st defendant to bring about false personation. The learned trial Judge has dealt with these various allegations and found that such of them as impute improper conduct of the 1st and 3rd defendants are false and that the others which relate to the procedure of the election are either false or immaterial. I entirely agree with the view taken by the Judge and have nothing to add to the reasons given by him.

The remaining allegations charge bribery, shutting out of votes, refusal to note objections and personations and a further complaint is made in this Court that the learned Judge refused to allow the plaintiffs to call witnesses to establish this last charge and prove that other persons had voted in their names.

Dealing with the last point first, the learned Judge held that after proper enquiry had been made by the Dharmakartas and a vote accepted in the name of a particular person, that vote could not be removed and that, therefore, it was useless to offer evidence that the person really entitled to vote did not vote. This decision is based on the language of rule. 16 and 17 of the scheme which provide that a voter shall also be entitled to bring instances of personation to the notice of the surviving Dharmakartas, that on any objection being taken they shall mark such voting paper, enquire into the matter and either allow or disallow such vote at their discretion and shall state and sign each objection with their decision thereon, but that no such objection shall be taken after the voting paper has been once accepted and passed by the surviving Dharmakartas. It is contended by the respondents that the view of the learned Judge is correct and that the surviving Dharmakartas were a judicial tribunal created by the Court, whose decision in the absence of fraud could not be reviewed. The appellants contend that the careful provisions point to the conclusion that the evidence should be recorded for the purpose of being considered by the Court. The respondents rely on two cases in this Court, Secretary of State for India in Council v. Venkatesalu Naidu and Nataraja Mudaliar v. Municipal Council of Mayavaram(2) and a decision of the Bombay High Court in Bhaishankar v. The Municipal Corporation of Bombay(3). In my view these cased do not support their contention. The case in I.L.R 30 Mad., 113 decides that, where by statue a person is disqualified from being a Municipal Councillor when he has been guilty of an offence which in the opinion of the Governor in Council unfits him for the post, he can not hold it. The words “in the opinion of the Governor in Council” are conclusive and the Courts have always refused to substitute their own opinion for that provided in the statute The case in 21 M.L.J, 878 decides that, where the status of a Municipal Councillor is the creation of a statute and that creation is subject inter alia to the condition imposed by the election rules, then when an order is properly passed by the Collector under the rules it cannot be questioned in the Courts. The position here is entirely different The persons who sought to vote and to allowed to give evidence that the votes purporting to be in their names were not their votes, wer persons who were worshippers of the temple and as such prima facie entitled to elect the Dharmakarta. The scheme settled by the Court did not create their right. All that the scheme purported to do was to limit the exercise of that right to a certain number of such persons. So that not only was their status not created by statute, but it was not created by the decree. The case in I.L.R, 31 Bom., 604 was one under the Bombay Municipal Act of 1888, which provided by Sect. 33 that the Chief Judge of the Small Cause Court should exercise jurisdiction to determine the validity of a contested election and provided also that his order should be conclusive and that every election not challenged before him should be deemed to have been to all intents and purposes a good and valid election. Here again is a statutory body created and sole jurisdiction conferred upon a particular Court; and nothing could be clearer than the language of Sect. 33. I entirely agree, if I may say so with respect, with the language of the learned Chief Justice on page 609.” “In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any; there is no change of the old order of things; a new order is brought into being.” Applying this test to the present case, it is clear how different the conditions are; for here the Court which passed a decree is being asked to decide whether a person whose rights have been declared by that decree has suffered a violation of those rights, and it is sought to oust its jurisdiction by the language of the decree. It was not contended that the Court could not interfere if the President settled a list in violation of R. 10, or on an alleged violation of R. 15, but reliance was placed on the words “at their discretion” in R. 17. I pointed out in the course of the argument that the words were meaningless and Mr. Rangachari suggested that they meant “to the best of their judgment.” If that is to be accepted, the case for finality on the words goes for Courts that do not interfere with discretion are not so limited in cases of error.

Further, in my view, the respondents have advanced an argument which is fatal to their case. Admittedly the jurisdiction was to have been exercised by the surviving Dharmakartas. It is clear on the evidence that it was exercised by the President alone. Where a judicial tribunal comprised of two persons exercises its functions by one only, it seems clear that its decision is a nullity, and in that view the decision would have to be ignored. But I agree with the contention of the appellants that the Dharmakartas were not created a tribunal by the decree, but as it was necessary that some one should give a decision on questions of this sort, they were invested with that duty, but the Court had power to review their decision. Admittedly the President did not conform to the regulations laid down in R. 17 in that he did not state and sign the objection in respect of objection disallowed. In my opinion the double illegality of the procedure is fatal to the decision of the President; and also in my opinion the learned judge should have admitted the evidence sought to be adduced.

I think, however, that this illegality does not invalidate the election. For reasons which will be given later, I find no authority for the proposition that personation by itself has this effect and it is certainly not so provided in the scheme. The proper course in my view is to strike off the number of votes proved to have been given by personation. In this case the learned Judge having declined to admit the evidence, it is impossible to say how many cases of personation there were. But on the allegations of the plaintiffs there were not more than fifty. At the highest, therefore, they will be entitled to have fifty votes struck off from the successful candidate's votes; and as he had a majority of more than one hundred, the doing of this will not affect the result. This objection, therefore, fails.

The next allegation is that of general bribery. I am not satisfied that general bribery has been proved; and even if it had been established to a certain extent, but had not been brought home to an agent of the candidate, I should hold that it would not invalidate the election. The point was considered by the Court of Common Pleas in Woodward v. Sarsons. It was a case stated under the Corrupt Practices Municipal Elections Act of 1872, 35 and 36 Vic., C. 60, Sect. 15. The judgment of the Court was given by Lord Coleridge, Chief Justice, and on page 743 the following proposition is stated: “What is the true statement of the rule under which an election may be avoided by the common law of Parliament?”; and they answer it as follows: “if the election was so conducted that the tribunal, which is asked to avoid it is satisfied as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws.” As to the first the tribunal should be so satisfied, i.e, that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer, and this would be so if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference by general corruption “and by other means which the Court indicates. The learned Judges state that this is the result of comparing the judgments of certain Judges appointed by statute to hear election petitions with judgments which express the grounds of the decisions in Parliament in older cases. One thing is clear from the observations of the Court, that prior to the statutory provisions this was the general rule adopted by the House of Commons. It is this rule which is called “the common law of Parliament,” a phrase, the utility of which must not conceal the fact that Parliament acted in the exercise of an unfettered discretion and that no Court had any jurisdiction to adjudicate on the question. It is urged that the rule adopted by Parliament is one which this Court can safely follow in applying the principles of equity and good conscience. I think that there is force in this contention. The difficulty is, however, to define the limits of so elastic a rule. Dealing with the present case, I am clearly of opinion that the facts proved do not establish that the majority have been prevented from electing the candidate they preferred and I think it unnecessary to go into finer distinctions referred to by the eminent Judges in that case. It is contended by the appellants that some cases of bribery have been brought home to agents. The cases have been very carefully examined and I need say no more than that the great majority of them are not proved. I am inclined to think, however, that two of them are established. I do not think it necessary to deal with them specifically, because, in my view, that is not enough. Mr. T. R. Ramachandra Aiyar sought to establish that one case of bribery brought home to an agent would invalidate the election. His junior, who first appeared, endeavoured to base that argument on present Parliamentary election law. It is only necessary to observe that that law is the creature of statute. Mr. Ramachandra Aiyar relies on older authority. He has invited our attention to a passage in Blackstone's “Commentaries on the Laws of England,” (6th Edition, 1774) Vol. I, page 179. The passage is as follows: “The first instance that occurs of election bribery was so early as 13 Elizabeth when one Thomas Long, being a simple man and of small capacity to serve in Parliament, acknowledged that he had given the returning officer and others of the borough for which he was chosen four pounds to be returned member and was for that premium elected. For this offence the borough was amerced, the members removed and the officer fined and imprisoned,” It is not clear from the language used just above this passage whether this case was one under a statutory provision or not. I am inclined to think that it was not, and that it was a case in which the House of Commons exercised its right to keep that body pure. The case was, however, a very bad one. The member had given the returning officer and the persons who controlled the election a sum of money and he was for that premium elected. That phrase can only mean that the election was the direct result of the payment; and bearing in mind that up to 1832 seats in the House were largely in the gift of certain persons of position, it is clear that in this case the member bought practically the whole constituency. This case is, therefore, no authority for the proposition that a single case of bribery will invalidate an election. I do not think that the language of the learned editor of the title on “elections” in Vol. 12, Halsbury's Laws of England, puts the case any higher than that. Nor do I think the rules of equity and good conscience make it necessary for us to declare an election void, because the agent of a candidate has been guilty of one or two acts of bribery. Bribery is stated to be an indictable offence at common law; and it is suggested that within the original criminal jurisdiction of the High Court it may still be an offence. But even if that were so, agency cannot be imputed in the case of a crime, nor should it be presumed unless the bribery by the agent is very extensive or other circumstances bring it home clearly to the authority of the candidate. For these reasons I am of opinion that this objection fails.

The last objection is that instigation to personation is proved against one of the agents. There is one strong case of personation, namely, that of Nagappa Maistri. But in spite of the arguments addressed to us by the appellants' Vakil, I am not satisfied that direct fraud is brought home to the candidate's agent in this case. He did not bring the voter to the polling booth. What he did was to identify him there. It is urged that he has himself admitted that he knew the voters personally. That is so; but that does not eliminate the possibility of a mistake. Even if it were established, I am not prepared to hold the candidate responsible. Reliance is placed on the language used by the editor of the title “elections” in Vol. 12 of Halsbury's Laws of England, page 293, where the decision in the Gloucester case is relied on as establishing the proposition that, if it is once shown that a candidate has employed an agent who is capable of doing such a thing as persuading another fraudulently to personate and obtain a vote, that candidate must suffer the penalty for having trusted such a person. The proposition is certainly very broad. The case was one after the passing of the Ballot Act of 1872, which defined and punished personation, and in the absence of the reported case I am not prepared to accept that doctrine as being conformable to equity and good conscience. I have now disposed of all the objections and on the facts found the appeal fails. If the voting had been closer the result might have been otherwise and I am constrained to observe, after going through the whole of the evidence in this case, that the scheme does not seem to have realized the hopes of the Court that passed it. Each election has been followed by a suit and general bribery and personation is freely alleged. Such allegations are hard to establish and may, on the other hand, be invented. But the fact that they can be so freely made is due to the fact that a large percentage of the electorate is illiterate, ignorant and easily imposed upon. I have grave doubts whether a body of that sort is best suited to elect the Dharmakarta of a temple.

The appeal will be dismissed with costs as ordered by my learned brother.

Appeal dismissed.