026-NLR-NLR-V-17-MURUGESU-et-al-v.-ARULIAH.pdf
( 91 )
♦
Present : Pereira J. and Ennis J.
MUBUGASU et ah v. ABULIAH.
881—D. C. Jaffna, 8,638.
u Temple—Customary law of India not introduced into Ceylon—
Proof of custom—Issue—Duty of Judge to frame.
Where a person claims to be declared the manager of a Hindutemple, he must, in the absence of documentary evidence establish-ing his right, prove some custom or customary law providing for theappointment of managers of such temples*, and establish his rightin accordance therewith. The customary laws of the Hindus ofIndia have not been introduced into this country.
A customary law of one country may be observed by- a class or*community in another country so long as to let it develop into acustom having the force of law in the latter country.
Where the parties to an action cannot agree to one consistent setof issues, it is the duty of the Judge to frame the issues himself.
The facts appear from the judgment.
H. A. Jayewardene (with him Arulanandam),. for plaintiffsrappellants.
Kanagasabai (with him Balasinghom and Mylvaganam), fordefendant, respondent.
Gut: adv. vvlt.
July 30, 1913. Pereira J.—
The question in this case is whether the plaintiffs are the ownersof lot B in plan P 11 made by D. Thambiah, licensed surveyor. Inthe conveyance. P 7 in favour of the first plaintiff there is' an express-exclusion of the M Vairava temple and banyan trees; M so that the-plaintiffs were not entitled to the temple and the trees: under thatdeed. Nine years after, that is, in 1910; the grantors of deed P-7
1913-
( 92 )
1918. executed in the first plaintiff's’ favour deed P 8 appointing himPereira J. m&nag&r of the temple, but it is manifest that this deed has been
got up merely to enable the first plaintiff to make a show of right
V asthe claims of the defendant, and that it really vested no
right in the first plaintiff. The temple is an ancient temple* andI think there is sufficient evidence tqjshow that it was in existenceat the time of the Grown grant in favour of Arumogam, the plaintiff'spredecessor in title, to the rest qf the land depicted on plan P 11.Clearly, the temple and the banyan trees, are not the property ofthe plaintiffs ; but the question is how much ,of the land B can besaid to belong to, or rather to be appurtenant to, the temple. I seeno reason to disagree with the District Judge in his decision on thisquestion. I think that, on.the whole, the probabilities, as indicatedby the evidence, are in favour of the assumption that the whole oflof?B is temple property.." '
The District Judge has proceeded to answer issue (6) of the issuessubmitted by the plaintiffs and issue (8) of the issues submitted bythe defendant, and to hold that the defendant is proprietor andmanager of the temple;, and that he is entitled to its possession.I do not think that there is anything in the record to jiistify. thesefindings. True, the temple registers .of 1884 and 1892 give themanager's name as Arumogam Bamu, but the registers can hardlybe regarded as evidence on the question of the managership of thetemples registered. Assuming, however, that Arumogam Bamuwas at one time the manager of the temple in question, it is notdear whether the defendant claims to be "manager by reason ofBamu's wife being his mother-in-law, or by reason of his being asalleged a descendant of Mania Udayar, the reputed founder of thetfemple. Bamu himself does not appear to have been in the directline of descent from Mania Udayar. The defendant has not^established by evidence any customs or customary law providingfor the appointment of managers of Hindu temples, and has notshgwn that he was appointed manager of the temple in question in•accordance therewith. It has been said that the customary law ofthe Hindus of India with reference to temples has been importedinto this country. I am not aware of any legal process by whichthe law, customary or otherwise, of one country is imported intoanother, except, of course, express legislation. The customary lawof one country may be observed by a class or community in anothercountry so long as to let it develop into a custom having the force oflaw in the latter country, but in this case there is no proof of anysuch local custom or of any customary or other law of India to«upport the defendant's claim. The District .Judge's findings onthe issues referred to above cannot therefore be supported, althoughthere is no doubt that the defendant is now, and has been for some,time past, in possession of the temple as the de facto (possibly self-eonstituted) manager of it.
I would affirm the decree appealed from, but as success on thepoints raised for decision in the Court below is divided, I'think thateach party should, bear his own costs in both Courts.
Before parting with this case, I should like to observe that theorder of the District Judge adopting the two sets of issues submittedby the parties is irregular, and calculated to lead to a deal of confusionand embarrassment. Under section 146 of the Civil Procedure Code,,if the parties could not agree to one set of issues, the District Judgeshould have framed the issues himself, and there should have beenonly one set of .issues to be dealt with.
Ennis J.—Agreed.
Appeal dismissed.
1918.
Pebkiba J.
Murugaeu v.Afuliah