Venkatasubba Rao, J.:— This is a suit instituted under Section 92 of the CPC. It relates to the temple dedicated to Chennakeswaraswami at Cherukupalli, Repalle taluq. There are five plaintiffs and the plaint asks for reliefs contemplated by Section 92 of the CPC. The learned Subordinate Judge has passed a decree and the present appeals have been filed by the defendants in the suit.
2. The appellants in Appeal No. 333 of 1922, firstly contend that the plaintiffs are not persons having an interest in the trust within the meaning of S. 92 and the suit, therefore, does not lie. The lower Court has rejected this plea, and in my opinion, rightly. The 1st plaintiff is a resident of Arumbaka, and Cherukupalli, where the temple is situated, is a hamlet of this place. The 1st plaintiff's marriage was performed at the temple in question. He is the karnam of Cherukupalli. The 2nd plaintiff resides at Balusulapaliem which is at a distance of two miles from Cherukupalli. The 3rd, 4th and 5th plaintiffs reside at Sirupudi which is within three miles from the suit temple. At both these places the temple owns lands. According to the evidence, persons belonging to these villages attend the suit temple on important occasions and they also celebrate at that temple their marriages. Can it be said that in these circumstances the plaintiffs are not person having an interest in the trust? The case that has been most strongly relied on by the appellants is T.R Ramchandra Aiyar v. Parameswaran Unni(1): but, in my opinion; this case does not support them. Whether the plaintiffs have an interest in the trust or not is a pure question of fact and the case cited must be understood with reference to the facts of that case. All that it decided is, that although prima facie any Hindu has a right to worship in any Hindu temple it does not necessarily follow that every Hindu has in relation to every Hindu temple the interest which gives him the right to sue under S. 92. The danger of the extreme view contended for in that case is very well pointed out by Sir John Wallis, C.J, for, according to that view, any Hindu out of the millions of Hindus in India may insitute a suit in respect of any temple. Coutts-Trotter, J. (as he then was) also refers to the absurdity of this position by pointing out that a Hindu resident of Peshawar cannot be said to have an interest within the meaning of S. 92 in a temple in Malabar. While avoiding this extreme view, one must not commit the mistake of going to the other extreme. The view now urged by the appellants is that unless a person habitually resorts to a temple for worship he cannot be said to have an interest under the section. As pointed out in one of the judgments in that very case the Christian conception of a parish with special local rights in its parishioners is utterly foreign to the Hindu mind. This fact must not be lost sight of when dealing with Hindu institutions and there is nothing in S. 92 to compel the Courts to accept the very limited and narrow construction suggested by the appellants. A Hindu will feel surprised to be told that he has no interest in a temple which is within a few yards of his residence, because he does not habitually attend at that temple for purposes of worship. To worship the god in the temple it may not be always necessary to resort to the temple. Can it be said that a man who lives in the vicinity of a temple and regularly cornea out to worship the idol when it is taken in a procession is not a person having an interests in that temple? The Code of Civil Procedure of 1877 (S. 539) provided that the persons authorized to sue must have a “direct interest” in the trust. The word “direct” is omitted in the present Code and the very object of this change will be defeated if the narrow construction suggested is adopted. The interest which the plaintiffs possess must be real and not remote, must be substantial and not illusory, must be an existing interest and not a mere contingency. The most authoritative statement of the law is that contained in Vaidyanatha Aiyar v. Swaminaika Aiyar(2). Their Lordships of the Judicial Committee say: “That the bare possibility however remote, that a Hindu might desire to resort to a particular temple does not give him an interest under S. 92 in the trust.” This is the limitation we must recognize, but it is not a proper inference from this, that whatever may be the proved facts, the mere circumstance that the plaintiffs do not habitually resort to a temple is sufficient to debar them from exercising the right under the section.
3. The next point raised in the appeal relates to the question of res judicata. Defendants 1 to 5 are hereditary archakas and they claim with reference to a large extent of the property, the subject-matter of the suit, that it was in the remote past set apart as a special endowment for (1) archaka service, and (2) Nitya Dhupa Dheepa Naivedyam. According to their case, their ancestors who were archakas were put into possession of these lands and they were to perform the archaka services and provide the articles of worship. In other words, it was a unified or a combined endowment and from the income of the property moneys were to be spent not only for the purchase of the materials but also for remunerating their own services, i.e, the services of the archakas. Has this question become res judicata by reason of the judgment of the High Court (in Appeal No. 283 of 1914) in the previous Suit No. 77 of 1910? The present 6th defendant, the hereditary trustee, was the plaintiff, and the present Defendants 1 to 5, the archakas, were the contesting defendants in that suit. The hereditary trustee claimed in it possession of these properties and the archakas resisted that claim. They put forward in that suit the same defence as they have now put forward in this. In paragraph 3 in the written statement in C.S No. 77 of 1910 the archakas claimed that the lands in question “were originally endowed specifically for archaka service which consists of daily worship, naivedyam and lighting.” A portion of the second issue in that case runs thus:—
“Were the lands originally granted for archaka service and are the defendants entitled to hold them without the interference of the Dharmakartha, if any?”
4. The case was disposed of finally by the learned Judges of this Court and the contention of the defendants was accepted by them. We have carefully read the judgment and we cannot help coming to this conclusion. After referring to the contention raised in para. 3 of the written statement the learned Judges said:—
“The origin of these endowments is not known but the evidence is that these lands have been in the possession, always from time immemorial, of the archakas and that they have applied the profits for the services mentioned in the written statement.”
5. They decided that the trustee was not entitled to possession of these lands and made the following observation:—
“The long possession of the defendants raises a strong presumption in their favour that their possession had a legal origin.”
6. Not only did the learned Judges find that the defendants were entitled as against the trustee to remain in possession but they also found that their possession had a legal origin. What can this legal origin be referred to? The archakas claimed that the lands had been put in their possession for certain specific purposes, mentioned. That claim the High Court recognized in the earlier part of the judgment and the finding in favour of a legal origin can only refer to the recognition of the same claims as then put forward.
7. The respondents' learned vakil has laid stress upon the following portion of the judgment:—
“As regards the possession of these lands, we are of opinion that the plaintiff has made out no cause of action.”
8. What the learned Judges meant to say was, that in a suit framed as one for possession the plaintiff could get no relief on their findings. Nothing more could have been meant. They merely intended to say that although the contention of the archakas was well founded, nevertheless if breach of trust or mismanagement could be shown on their part, the plaintiff could obtain relief in appropriate proceedings. This does not mean that they decided only the question of possession. I am therefore clearly of the opinion that the archakas put forward their right in the previous suit, that it formed the subject of an issue and that in the final judgment in the case the High Court upheld that right. Are then the plaintiffs not bound by that adjudication? When in a suit where the trust is properly represented, after real and genuine contest a decision is given, it will be absurd-to hold that persons not parties to the previous suit, although they may have an interest in the trust, can ask the matter to be re-opened and the question to be re-tried. Iam satisfied that the plea of res judicata must prevail.
9. The learned Subordinate Judge has disallowed the claim of the defendants to about 23 acres out of 130 acres claimed by them. He has found that this land had been endowed for the lighting of the akhandam. This finding has not been questioned in the appeal and we confirm it.
10. The result is that, after excluding the lands set apart for the akhandam, the rest of the land out of 130 acres will be declared as having been set apart for the archaka services and for nitya dhupa, dheepa, naivedyam.
11. In the case of this endowment there arises a conflict between interest and duty. The position of the archakas offers to them the temptation of spending as little as possible on nitya dhupa deepa naivedyam, for whatever is not spent in that way may be retained by themselves as remuneration for their own services. We therefore think it necessary that we should fix the proportion. 3/7ths of the net produce we desire to set apart for purposes connected with nitya dhupa dheepa naivedyam and the archakas will be at liberty to retain the balance, that is 4/7ths as remuneratipn for the archaka services.
12. Lastly remains the question (raised in App. 258 of 3922); Is it necessary to remove the hereditary trustee? In our opinion it is neither necessary nor desirable. The temple is in a petty village and it is not likely that the services of an efficient trustee will be available. Most of the charges against the trustee show that he has been guilty of neglect, but it must be said that he has not wasted or alienated the corpus and has for a long time been fighting with the archakas with a view to get for the temple the properties in their possession. This temple, though well endowed, is apparently not an important one, and the neglect of the trustee has aroused little public attention. It seems to us that the present suit was directed more against the archakas than against the trustees. The decision in the previous suit having been against the trustee this was a fresh attempt made in the same direction to get the lands claimed as a special endowment declared to belong to the general endowment of the temple. We do not think that, in the interests of the temple, the 6th defendant should be removed from the office of trustee. We declare that the office is hereditary in his family and we direct that he shall continue as trustee.
13. The archakas will be directed to deliver up possession to the 6th defendant of all lands which have not been declared to be the subject of the special endowment referred to above. The archakas will be entitled to retain with themselves 4/7ths of the net produce of the lands forming the special endowment and to hand over to the 6th defendant the remaining 3/7ths.
14. We understand that the interim trustee appointed by the Court has certain moneys with him either in his hands or in deposit in Court. These sums he will be directed to pay into the hands of the 6th defendant who shall deal with them in accordance with the rights declared in their judgment.
15. In the scheme to be framed, it will not be necessary to insert any provision regarding the repairing or the rebuilding of the temple. These are matters which, no doubt, the trustee will attend to at an early date in the discharge of his duties.
16. Each party will bear his costs in these appeals. So far as the costs of the suit in the lower Court are concerned, the plaintiffs will get ⅔rds of their costs from the 6th defendant from and out of the temple funds; the balance of ⅓rd they shall get from Defendants 1 to 5 and 7 personally.
17. The parties are required to bring in a scheme tomorrow. A copy of this judgment and the scheme will be forwarded to the Religions Endowments Board.
Madhavan Nair, J.:— I agree with the judgment just now delivered by my learned brother. As regards the meaning of the term “interest” as used in Section 92 of the CPC, I have already expressed my opinion in my judgment in A.S No. 88 of 1922 and for that reason I do not think it necessary to further deal with it here. On the facts of this case, I am clearly satisfied that the plaintiffs have the interest contemplated by Section 92 of the CPC.
18. The following scheme has been submitted to us and we approve of it:—
1. The office of trustee shall be hereditary in the family of the 6th defendant. He shall be the first trustee under this scheme and shall hold office for life.
2. The trustee shall ordinarily reside in Repalle taluq, Guntur district.
3. The trustee shall utilize the 3/7ths of the income to be paid by the archakas which has been referred to in the judgment for the nitya dhupa deepa naivedyam.
4. The archakas shall be permitted to live in the house and site described in Sch. A belonging to the temple.
5. Save as is expressly provided herein the provisions of the Religious Endowments Act (Madras Act I of 1925) shall apply to the hereditary trustee and all matters connected with him or the management of the trust.
19. Scheme settled.