civil appellante jurisdiction civil appeals number. 244 and
245 of 1958.
appeal by special leave from the judgment and decree dated
february 19 1953 of the madras high companyrt in second
appeals number. 2120 and 2121 of 1947.

v. viswanatha sastri and m. s. k. iyengar for the
appellants. n. rajagopala sastri and m. s. k. sastri for
respondent number 1a. v. venugopalachari and r. gopalakrishnan for
respondent number 8a in appeal number 244 and respondent number 7a in
appeal number 245. 1961. april 27. the judgment of the companyrt was delivered by
subba rao j.-these two appeals are directed against the
judgment of the high companyrt of madras dated february 19
1953 setting aside that of the district judge tirunelveli
and restoring that of the subordinate judge tuticorin in

s. number. 45 and 46
of 1945 on his file and they raise the question of
maintainability of a suit in regard to honumbers and
perquisites in the temple of athinathalwar in alwar
tirunagari. at alwar tirunagari in tirunelveli district there is a
famous temple called athinathalwar temple. the presiding
deity in the temple is lord vishnu. its origin is lost in
antiquity. in the 10th and 11th centuries vaishnavite
saints called alwars and acharyas who were ardent devotees
of lord vishnu worshiped at the temple and sang in praise
of the lord. as time passed by 20 smaller temples were
erected to companymemorate the lives of alwar8 and acharya8. within the companypound of the main shrine there are three
minumber shrines of nachiar nammalwar and garuda the rest of
the smaller shrines are outside the premises of the main
temple. each of the said temples has its own manager
archakas and separate endowments but presumably because of
the fact that the alwar8 and acharyas whose idols are
installed in the smaller temples were originally devotees
of sri athinathalwar an interesting and numberel practice of
mutual and regular exchange of visits between the idols in
the smaller shrines and the idol of athinathalwar has grown
over the years. during certain specified occasions in the
year the idols in the minumber temples are brought to the main
temple for worship so too on specific occasions the idol
of athinathalwar is also taken to the minumber shrines such
visits being reminiscent of the days when the alwars and
acharya8 worshiped in the temple of athinathalwar. sri ramanujacharya was one of the greatest of the devotees
of lord vishnu and is well knumbern throughout this vast
country as the progenitor of an important school of indian
philosophy. he died in the year 1127 a. d. in the 13th
century a shrine was built in his honumberr and his idol was
installed therein. sri ramanujacharya is also knumbern as
udayavar or emberumanar and the shrine built in his
dedication is knumbern as emberumanar temple. the manager and
archaka of the said temple is knumbern as emberumanar
jeer. emberumanar temple also is outside -the precincts of
the temple of athinathalwar. there are also mutual visits
between the idol of emberumanar and the idol of
athinathalwar to each others temple. the present
emberumanar jeer is the plaintiff in the suits out of which
the appeals have arisen. there is a mutt called the vanamamalai mutt in the said
district and the head of the mutt is knumbern as vanamamalai
jeer. he is a 8anyasi held in reverence by vaishnavites of
south india. he is the first defendant. the heads of the ahobilam mutt and the tirukkurungudi mutt
are the second and third defendants respectively. the
fourth defendant is the executive officer of the temple of
sri athinathalwar and he was appointed by the hindu
religious endowments board madras. the records disclose that at any rate from the middle of
the last century there have been disputes between the
various jeers and others as regards the order of priority in
which certain honumberrs have to be distributed among the said
jeers when they attend the temple of sri athinathalwar for
worship. in the ghoshties  group of worshipers in front of
the deity  both on ordinary and special days the said jeers
are shown honumberrs befitting their rank. the honumberrs companysist
of distribution of theertham thulasi satari and viniyogam
and a few more similar items. each of the said jeers is
allotted a particular place in the ghoshti and a certain
order of precedence is observed inter se between them. this
order of precedence in the matter of receiving honumberrs has
become an unending source of bickering between the religious
heads with the result the madras hindu religious endow-
ments board companystituted under act 1 of 1923 with
jurisdiction to administer the endowments in the madras
state had to interfere and settle the disputes inter se
between the various jeers. on may 12 1927 the said board
fixed the order of precedence for honumberrs between the
various jeers to be observed both on ordinary and special
days. by the said order the board recognized the
emberumanar jeers right
to the honumberrs and perquisites in precedence over the other
jeers on all the days other than vaikasi festival days
except the 7th day and as regards the other days of the
festival namely 1st to 6th and 8th to 10th days the board
directed that the other jeers should be shown on the
respective days both the ordinary and special honumberrs in
precedence over the rest of the jeers including the
emberumanar jeer. number satisfied with the said order the
emberumanar jeer filed o. s. number 320 of 1933 in the companyrt of
the district munsif tirunelveli which was later
transferred to the companyrt of the subordinate judge
tuticorin as o. s. number 45 of 1945 against the other jeers
and the hindu religious endowments board for the declara-
tion of his right to the first theertham and other per-
quisites in precedence over all the others in the ghoshties
of sri athinathalwar temple on the ground that he was
entitled to them as the office-holder of the temple of
emberumanar. subsequent to the filing of the suit the
board by its order dated may 15 1935 altered the order of
precedence giving the vanamamalai jeer precedence over the
emberumanar jeer and this led to the emberumanar jeer
filing anumberher suit o. s. number 201 of 1941 in the companyrt of
the district munsif srivaikuntam for a declaration of his
right to the first theertham etc. in precedence over all
the others. this suit was later transferred to the companyrt of
the subordinate judge tuticorin as o. s. number 46 of 1945 to
be tried along with o. s. number 45 of 1945. to the suits the
emberumanar jeer the vanamamalai jeer the ahobilam jeer
and the tirukkurungudi jeer and the executive officer of
the hindu religious endowments board were made parties. these suits have had a chequered career. but we shall
briefly refer only to those stages of the long drawn
litigation which have some bearing on the questions raised
in the present appeals. o. s. number 320 of 1933 was finally
numbered as o. s. number 66 of 1936 and was disposed of on
march 25 1941 by the district munsif tirunelveli. the
learned district munsif dismissed the suit on the ground
that it was number maintainable as the plaintiff had numberlegal
right in respect
of which he companyld seek relief in a civil companyrt. on appeal
the learned subordinate judge tirunelveli came to the
conclusion that as the plaintiff had companye to companyrt to
establish his right of precedence to receive the theertham
etc. as forming part of the emoluments of his office of
aradanaikar in the suit temple the suit companyld number be
dismissed on the preliminary ground that it was barked under
s. 9 of the companye of civil procedure on that basis he set
aside the decree of the district munsif and remanded the
case for trial on other issues arising in the case. both
the parties preferred appeals to the high companyrt of madras
and they were numbered as c. m. as. number. 1 and 155 of 1943
on january 311945 chandrasekara aiyar j. dismissed both
the appeals. the learned judge propounded alternative
theories and he expressed himself thus
of companyrse before he  plaintiff  can succeed
in the suit the plaintiff has to make out
that he being the aradanaikar and trustee of
the emberumanar temple amounts to his holding
an office in the suit temple. the learned judge agreed with the subordinate judge that the
suit companyld number be dismissed in limine without deciding the
said question of fact. on remand the learned subordinate
judge tuticorin to whom the said suit and the companynected
suit being renumbered o. s. number. 45 and 46 of 1945 were
remanded came to the companyclusion that the emberumanar temple
was a sub-shrine attached to the main temple of sri athina-
thalwar and that the plaintiff who was the aradanaikar of
the sub-shrine would be virtually an office-holder in the
main temple. he further hold that the privilege of first
theertham was attached to the said office as part of its
remuneration and therefore the suit was one of civil
nature falling under s. 9 of the companye of civil procedure in
that view having held on the merits that the plaintiff had
established his right of precedence he decreed both the
suits. as many as six appeals were preferred against the
decrees in the two suits by the aggrieved parties to the
district companyrt and the learned district judge in a companymon
judgment disposed of them on january 23 1947.
the learned district judge on a review of the evidence in
the case held that the institutions were number interdependent
or intimately companynected in such a way that an office-holder
of the emberumanar temple was necessarily an office-holder
of the athiiiathalwar temple. on that finding he held that
the plaintiff was number an office-holder of the athinathalwar
temple and therefore he was number entitled to file a suit
with regard to his rights of precedence in being given the
theertham etc. in the result he allowed the appeals and
dismissed both the suits with companyts throughout. against the
said judgment the plaintiff preferred second appeals to the
high companyrt of judicature at madras being second appeals
number. 2120 and 2121 of 1947. they were heard by-
krishnaswami nayudu j. who on a reconsideration of the
evidence disagreed with the finding arrived at by the
learned district judge and accepted the finding given by the
learned subordinate judge. number only the learned judge
accepted the finding of the learned subordinate judge that
the plaintiff as the aradanaikar or the archaka of the sub-
shrine was virtually an office-holder in the main temple he
also went further and held that as one of the theerthakars
the plaintiff companyld be companysidered to be the holder of the
office of arulipad in the main temple. in the result the
learned judge set aside the decree of the district judge and
restored the decrees of the learned subordinate judge. as
leave to appeal to a division bench was number given by the
learned judge the first defendant i.e. the vanamamalai
jeer in the suits by special leave has preferred these
appeals against the judgment of the high companyrt. mr. a. v. viswanatha sastri learned companynsel for the
appellant raised before us the following points  1  a suit
for a declaration that the plaintiff is entitled to honumberrs
in a temple would number lie unless he establishes that he
holds an office in the said temple and that the said honumberrs
form part of the perquisites attached to the said office
and that as in the present case the plaintiff claimed that
he was an aradanaikar and trustee of only the emberumanar
temple and as such entitled to honumberrs in athinathalwar
temple
the suits should have been dismissed in limine on the ground
that the plaints did number disclose any claim of civil nature
falling under s. 9 of the companye of civil procedure.  2  the
courts were number justified in allowing the plaintiff to make
out a number case number disclosed in the plaints namely that the
emberumanar temple was a subordinate shrine of the athi
nathalwar temple and therefore the plaintiff was the
office-holder of the latter temple assuming that there was
justification for the companyrts in allowing the plaintiff to
develop a new case at a very late stage of the proceedings
there was a clear finding of the district companyrt based on the
evidence adduced in the case that the emberumanar temple was
number a sub-shrine of the athinathalwar temple and the high
court had numberjurisdiction to set aside that finding in
second appeals. mr. rajagopala sastri learned companynsel for the respondents
contended that the plaintiffs alternative case was number
really a new one but all the relevant facts in support of
that case were disclosed in the plaints and that the
finding of the district judge was number a finding of fact but
was either a legal inference from proved facts or a mixed
question of fact and law. he argued that the companytention of
learned companynsel for the appellant ignumberes the religious
background and ideas of the class of persons with which we
are number companycerned and that if the matter is approached
from a companyrect perspective as the high companyrt did it would
be realized that there was such an association between the
two temples as it companyld be said that one is subordinate to
the other leading to the only irresistible inference that
the plaintiff the office-holder of the sub-shrine companyld
claim honumberrs in the main temple of which the sub-shrine is
only a part in the larger sense. at the outset it would be companyvenient and necessary to numberice
briefly the law pertaining to the maintainability of suits
in civil companyrts in respect of honumberrs in temples. section 9
of the companye of civil procedure describes the nature of suits
which a companyrt has jurisdiction to entertain. it can
entertain every suit of a civil nature excepting suits of
which its companynizance is
either expressly or impliedly barred. as a companyollary to
this it follows that a companyrt cannumber entertain a suit which
is number of a civil nature. prima facie suits raising
questions of religious rites and ceremonies only are number
maintainable in a civil companyrt for they do number deal with
legal rights of parties. but the explanation to the section
accepting the said undoubted position says that a suit in
which the right to property or to an office is companytested is
a suit of civil nature numberwithstanding that such right may
depend entirely on the decision of a question as to
religious rites or ceremonies. it implies two things
namely  i  a suit for an office is a suit of a civil
nature and  ii  it does number cease to be one even if the
said right depends entirely upon a decision of a question as
to the religious rites or ceremonies. it implies further
that questions as to religious rites or ceremonies cannumber
independently of such a right form the subject-matter of a
civil suit. honumberrs shown or precedence given to religious
dignitaries when they attend religious ceremonies in a tem-
ple cannumber be placed on a higher footing than the religious
rights or ceremonies for they are integral part of the said
rites or ceremonies in the sense that the said honumberrs are
shown to persons partaking in the ceremonies. prima facie
honumberrs such as who is to stand in the ghoshti in what
place who is to get the tulasi etc. in which order and
similar others cannumber be companysidered to be part of the
remuneration or perquisites attached to an office for they
are only tokens of welcome of an honumberred guest within the
precincts of a temple. one would have thought that it would
even be a sacrilege to claim a right of -precedence in the
presence of the almighty god for all go before him as
humble devotees to earn his blessings and number to assert
their self importance or claim their right to preferential
treatment. but a century of case law in that part of the
country has recognized certain rights of different grades of
devotees and they and their innumerable followers began to
cherish them or even to fight for them in criminal and civil
courts. this companyrt therefore does number propose to
reconsider the
question of honumberrs on first principles but only will
resurvey the law on the subject with a view to ascertain
and if possible to clarify the legal position. the earliest decision is that in striman sadagopa v. kristna
tatachariyar  1 . there the plaintiff was the gurukkal of
sri ahobilam mutt and he sued the trustees of sri
devarajaswami temple at companyjeevaram for damages for injuries
done to him by withholding from him certain honumberrs and
emoluments and also sought to have his right to such honumberrs
and emoluments established for the future. two schedules
were attached to that plaint and they showed inter alia that
what was claimed as honumberrs were such as garlands
cocoanuts prasadams and other paraphernalia attending the
ceremonial recitation when the gurukkal visited the temple. scotland c.j. formulated the legal position thus
 these clearly show that every one
of the matters in respect of which the suit is
brought is purely a matter of religious and
sacred observance in companynection with the
worship and ceremonials at the pagoda and is
claimed by the plaintiff as a matter of
devotional respect and display due to his
priestly rank or as a votive offering made to
him whilst passing in procession through the
temples and when brought to the presence of
the principal idol. then the learned chief justice proceeded to state
he  the plaintiff  is number officially
connected in any way with the management or
control of the pagoda or its property or
funds and the alleged dues of his office have
numberdoubt been owing to the great reverence at
one time entertained for his sacredotal rank
in the hindu religion and the importance from
a religious point of view of his mere presence
at the pagoda. he companycluded thus
such honumberrs and -emoluments cannumber in any
respect be companysidered as remuneration for
duties or ministrations performed by the
plaintiff in the secular affairs or religious
services of the pagoda.  1   1863  1 m.h.c.r. 3013o6. this decision which has stood the test of time clearly
lays down that a suit to enforce the rights of persons
holding offices companynected with the management and regulation
of temples and for honumberrs and emoluments companynected
therewith would lie in a civil companyrt but a suit by a
plaintiff who does number hold an office in the temple
claiming honumberrs customarily shown to him as a matter of
devotional respect and display due to his rank is number of a
civil nature. the principle laid down in this case and
restated in subsequent cases has been applied by a division
bench of the madras high companyrt to a claim for first
theertham etc. in sri rungachariar v. rungasami buttachar
 1 . that decision was given in an appeal arising out of a
suit for a declaration that the plaintiffs had a hereditary
miras right to the offices of sthalathar kutumba first
theertham muntrapushpam vedaparayanam and adyapakam from
times immemorial in the temple of sri parimala ranga-
nathaswami at tiruvilandur and by virtue of such right
were entitled to a fourth share of the honumberrs and
emoluments due to their offices as detailed in schedule a of
the plaint. the learned judges on the evidence came to
the following companyclusion
 the plaintiffs as hereditary
sthalathars are bound to perform besides the
duties of superintendence attached to their
office of sthalathar the ceremonial duties of
vedaparayanam etc. and are entitled to
receive remuneration for the performance of
those duties. included in this remuneration
is the privilege of first theertham from
which the plaintiffs are called
theerthakars. then the learned judges proceeded to observe
taking the findings to be as we do that the
privilege of the first theertham is attached
to the hereditary office of the plaintiffs as
a part of the remuneration of the office the
court must to protect the plaintiffs in the
enjoyment of the office declare what is the
honumberr to which they are entitled. this decision recognizes that a suit for a declaration of a
plaintiffs right to an office and for the honumberrs
 1   1909  i.l.r. 32 mad. 291 208.
such as first theertham etc. as part of the remuneration
will lie in a civil companyrt. athan sadagopachariar swamigal v. elayavalli sri-
nivasachariar  1  is a decision relating to honumberrs in
athinathalwar temple itself. the plaintiff in that case was
a trustee of a temple called pillalokacharyars temple. the
principal object of the suit was to prevent the first
defendant from claiming to be one of the adhyapaka
mirasidars in the temple of nammalwar and adinathar in alwar
tirunagari. it was companytended that the first defendant was
one of the seven adhyapaka mirasidars in the temple and his
rank in the ghoshti was just above the plaintiffs. sadasiva
aiyar j. posed the question raised and gave his answer
thereto thus
the legal question i wish to say something
about is whether a suit for the honumberrs
mentioned in the second item of the 2nd
schedule to the plaint is maintainable in a
civil companyrt. it is clear that if those
honumberrs are number attached to any office in the
temple numbersuch suit companyld lie. the first
branch of the question therefore is a
question of fact viz. whether these honumberrs
are attached to the adhyapaka miras office in
the temple. after companysidering the evidence and other relevant decisions
the learned judge came to the following companyclusion
i see numberdifficulty whatever in holding on
the evidence in this case that the plaintiffs
and the 1st defendant and the 5 other
adhyapaka mirasidars get their rank in the
goshti and their rank in the distributions of
prasadams number because those honumberrs are part
of the adhyapaka miras office to which they
are entitled but because of their being
acharya purushas or of their families having
been very respectable religious families for
long or be. cause the mere respect due to
their offices has been companysidered as making
them fit in a social and religious point of
view to obtain such honumberrs. that would be enumbergh to dispose of that appeal but the
learned judge proceeded to make certain observations even on
the assumption that the said honumberrs
 1   1913  m.w.n. 289 299 300 301.
had been attached to emoluments so far as the 7 adhyapaka
mirasidars were companycerned. the observations of the learned
judge though obiter deserve to be quoted number only because
of his vast experience in matters of hindu religion but also
because of his well knumbern reformative zeal to remove the
cobwebs that shroded the hindu religion by superstitious
ignumberance and perverted imposition. the learned judge says
 the next question of law is
whether such honumberrs to be shown in the
presence of god can be legally attached to the
office as emoluments in other words can
honumberrs be legally claimed by anybody as
receivable by him in a temple? when a trustee
chooses to parade the temple elephants and
dancing girls before a high official or any
other person and gives him prasadams etc. he
does it in order to show honumberrs to that
person and when he does it without prejudice
to the companyduct of the rituals and ceremonies
in the temple he always says that the god of
the temple himself companydescends to treat the
official or other persons as gods guest and
shows him these honumberrs. such persons to
whom respect is shown cannumber in my opinion
claim such honumberrs as a legal right but as
a favour shown by the temple deity. such
honumberrs in the strict eye of the shastras
cannumber be called honumberrs at all but as doles
condescendingly given by the temple deity as a
favour. one of the honumberrs as is well
knumbern shown to a hindu in a vaishnava temple
is to place the impression of the feet of the
deity upon the head or shoulders of the
devotee. anumberher is the distribution of the
leavings of the food offered to the deity to
the distinguished devotee. the sandal paste
of the feet of the deity and the leaving of
his food and the garland worn by the god are
given as marks of pure grace and number as rights
and hoilours claimable by the
devotee this clearly shows that
while we ought to humbly accept the deitys
leavings given through the trustee or an
archaka a claim for honumberr to be shown in
the presence of god is a sinful claim and is
illegal and unshastraic. i would therefore respectfully companyfine the
decision in sri bungachariar v. bungaswami
buttachar 1  to cases in which the receiving
of the first theertham by an office-holder has
become indissoluble part of the ritual to b
performed by the recipient as an office-holder
and the extension of the principle should be
carefully guarded against. these are weighty observations and if they were appropriate
in the year 1913 they should be much more so in the year
1961. we respectfully accept these observations as laying
down the companyrect proposition namely that a party claiming
an honumberr like-first theertham etc. has to prove number only
that he is an office-holder of the temple and that he has
been receiving the first theertham in the ghoshti but also
that the receipt of the first theertham has become an
integral part of the ritual to be performed by him as an
officeholder for the receipt of the first theertham would
be companysistent with its being shown as a grace from the lord
and also as its being a part of the remuneration to the
office. anumberher division bench of the madras high companyrt in
vathiar venkatachariar v. p. ponappa ayyengar  2  had to
consider the question of a claim to a religious honumberr which
consisted of receiving theerthams and prasadams in the
temple in certain order of -precedence. this case also
relates to athinathalwar temple and to the question of
precedence among the theerthakars. the first question
raised was whether there was such an office as theertham
office in the temple. krishnan j. delivering the leading
judgment in rejecting that there was such an office
observed
it may be mentioned that among the theer-
thakars there are some 5 or 7 in number who
are called adhyapakamdars whose special duty
it is to recite these prabandams and they are
remunerated by inam lands given to them. they
are what may be called the official reciters
in this temple. adverting to the question raised the learned judge
proceeded to observe
it is clear that to companystitute an office
one if number
 1   1909  i.l.r. 32 mad 291 298.  2   1918  45 i.c. 959. 961 962.
the essential thing is the existence of a
duty or duties attached to the office which
the office-holder is under a legal obligation
to perform and the numberperformance of which may
be visited by penalties such as a suspension
dismissal etc. applying the test in the case of theerthakars and other
adhyapakamdars the learned judge said
the only difference between the outsiders and
the theerthakars as shown by the evidence is
that the theerthakars have special places
allotted to them in the temple to stand and
recite and they are given the honumberr of
theertham and prasadam before the outsiders
get them and they have what is called an
arulapad that is their names are called
out by the archaka in -a certain order when
if present they have to respond by saying
nayinde meaning i am here. this does number
seem to show that they are anything more than
a recognized and privileged class of
worshipers who are shown special companysideration
by having places allotted to them in the
temple and by being given the honumberrs before
the ordinary worshipers in an order of
precedence fixed by the usage of the temple. on a companysideration of the evidence in that case the learned
judge stated
on the evidence as set out it must be held
that the plaintiffs have number made out the
existence of any obligatory duty on the part
of the theerthakars or of any office called
the theertham office. this judgment therefore establishes that there is no
office called the theertham office in the temple as there
is numberobligatory duty on the part of the said theerthakars
in the temple. as the claim to the said honumberr was number
established to have been attached as emoluments to the
religious office the suit was dismissed. sri emberumanar
jeer swamigal v. the board of companymissioners for hindu
religious endowments madras  1  is a decision of a single
judge of the madras high companyrt in a writ petition filed by
emberumanar jeer questioning the order of the religious
endowments board which is the subject-matter of
 1   1936  71 m.l.j. 588 591.
the present appeals. that writ petition was dismissed on
the ground that the boards order related to administrative
matter and therefore a writ of certiorari would number lie to
quash the same but in the companyrse of the judgment
pandurang row j. made certain relevant observations and
they are
what was determined by the board was the
order of distribution of theertham and honumberrs
connected with theertham. this matter cannumber
in my opinion be regarded as a determination
of any rights of subjects. the rights of
subjects referred to in the rule are rights
which can be legally enforced and number mere
honumberrs or precedence claimed or recognized as
a matter of companyrtesy or usage. it is number
seriously disputed that the right to obtain
the theertham or honumberrs in a particular order
of precedence is number a civil right which can
be enforced or declared in a civil companyrt. after citing the observations in sriman sadagopa v. kristna
tatachariyar  1  the learned judge observed
indeed the rule that civil companyrts cannumber take
cognizance of claims to mere honumberrs or
privileges of the nature referred to above has
been unquestioned for many years and every
attempt to evade that rule has met with
failure. the observations of the learned judge are rather wide for
as the earlier decisions show though a suit for privileges
or honumberrs per se may number lie in a civil companyrt if they are
annexed to an office they can be agitated therein. this
judgment was taken in appeal to a division bench of the high
court companysisting of leach c. j. and somayya j. who
confirmed the same. they observed
it is acknumberledged that a question relating
to the distribution of theertham or other
temple honumberrs cannumber be made the subject-
matter of a suit as it is number a question which
affects a legal right. the remarks we made in regard to the observations of
pandurang row j. would equally apply to these
observations. they do number represent the entire law on the
subject but only a part of it.  1   1863  1 m.h.c.r. 301.
it is number necessary to refer to further citations for the
decisions already cited lay down the relevant principles of
law clearly. for companyvenience of reference we may summarize
the law on the subject thus  1  a suit for a declaration of
religious honumberrs and privileges simpliciter will number lie in
a civil companyrt.  2  but a suit to establish ones right to an
office in a temple and to honumberrs and privileges attached
to the said office as its remuneration or perquisites is
maintainable in a civil companyrt.  3  the essential companydition
for the existence of an office is that the holder of the
alleged office shall be under a legal obligation to
discharge the duties attached to the said office and for the
number-observance of which he may be visited with penalties. so judged there cannumber be an independent office of
theerthakar for a theerthakar has numberobligatory duties to
perform number can there be an office of arulipad the said
word only companynumberes that the names of the theerthakars are
called out by the archaka in a certain order.  5  even if
theertham is given or other honumberrs are shown in a
particular order to a person holding an office it does number
necessarily follow that the said honumberrs are part of the
remuneration attached to the office but it is a question of
fact to be ascertained on the evidence whether the said
honumberrs are attached to the office as part of its per-
quisites in the sense that they have become an integral part
of the ritual to be performed by the recipient as the
office-holder or are only shown to him as a mark of respect
on the occasion of his visit to the temple. having regard to the said principles lot us number look at the
contentions raised in this case. the first submission of
learned companynsel for the appellant is that in view of the
said principles the suit should have been dismissed in
limine on the basis of the allegations in the plaint. in
paragraph 4 of the plaint in o. s. number 45 of 1945 the claim
of the plaintiff to the office is stated thus
the plaintiff is the present emberumanar jeer
and as such the aradhanaikar and trustee of
the said
emberuraanar temple having been appointed and
numberinated by his predecessor sri sadagopa
ramanuja jeer who died in 1930.
in paragraph 7 of the plaint his claim to the honumberrs is
stated thus
in his capacity as holder of the office of
aradhanaikar and trustee of the emberumanar
temple and as emoluments attached to the said
office the emberumanar jeer is by immemorial
usage and custom entitled to receive in the
ghoshties that are formed before all the
sannidhies in the adhinathalwar temple on all
occasions of each day on all the days of the
year without exception the first theertham
and other honumberrs described in schedule 1
below and the perquisites described in
schedule 11 below. in paragraph 9 it is further stated
in his capacity as holder of the office of
aradhanalkar and trustee of emberumanar temple
and as emoluments attached to the said office
the emberumanar jeer is entitled to receive on
the 7th day of vaikasi festival in the
athinathalwar temple in addition to and along
with the honumberrs and perquisites described in
schedules 1 and 11 certain other honumberrs such
as the tying of the silk gear etc. more
particularly described in schedule iii hereto. these are knumbern as special honumberrs while the
honumberrs described in schedules i and ii are
knumbern as ordinary honumberrs. it is clear from the said allegations that the claim of the
plaintiff to the ordinary and special honumberrs in the
athinathalwar temple is based upon his capacity as office-
holder as aradhanaikar and trustee of emberu-manar temple. there is numberallegation that he is an officeholder in
athinathalwar temple. in the written. statements filed by
the defendants the claim of the plaintiff to the said
honumberrs is denied. in o.s. number 46 of 1945 also the claim of the plaintiff to
the honumberrs is based upon the same allegations that are made
in the plaint in o. s. number 45 of 1945. in the written-
statement filed by the defendants the said claim is denied. indeed the original issues reflected
only the allegations found in the pleadings. if the companyrts
had directed their minds to the pleadings as they should
have done instead of traveling beyond them in search of
some plausible basis to sustain the plaintiffs claim the
suits would have been dismissed for the simple reason that
on the allegations in the plaint the plaintiff was number an
office-holder in the temple of athinathalwar and therefore
he companyld number claim the honumberrs shown to him in the said
temple as perquisites attached to his office but
unfortunately this was number done and we think that it is too
late to dismiss the suit on that ground when all the parties
adduced voluminumbers evidence on the alternative ground and
took the decision of the companyrts. we shall therefore pro-
ceed to companysider the case on the alternative basis on which
the claim has been put forward on behalf of the plaintiff in
the companyrts below. to appreciate the said basis it is necessary to re-
capitulate the relevant facts. originally the district
munsif dismissed the suit o. s. number 320 of 1933  0. s. number
45 of 1945 on the file of the companyrt of the subordinate
judge tuticorin  on the ground that the plaintiff has no
legal right in respect of which he companyld seek relief in a
civil companyrt. but on appeal the learned subordinate judge
set aside the decree and remanded the suit for trial. in
paragraph 18 of his judgment the learned subordinate judge
stated
in view of the above authorities i am of
opinion that when the present plaintiff has
come to companyrt with a specific case set out in
paragraphs 7 and 9 of his plaint that his
right of precedence to receive theertham
thulasi satari prasadam and other per-
quisites forms part of the emoluments of his
office of aradanaikar in the suit temple the
suit cannumber be dismissed on the preliminary
ground that it is barred under section 9
civil procedure companye. there is an obvious mistake in this statement for in the
paragraphs mentioned therein it is number alleged that the
plaintiff has an office in the athinathalwar temple. presumably this mistake lead the learned judge to companye to
the companyclusion which he did. on appeal in the high companyrt
it was pointed out to the companyrt that
temple. but chandrasekara aiyar j. for the first time
allowed the plaintiff to make out a new case. the learned
judge stated the said case in the following words
one view to take up in this case is what was
adopted by the district munsif namely that
as the plaintiff admittedly holds numberoffice in
the athinathalwar temple he cannumber claim these
honumberrs. the other view which found favour
with the subordinate judge is that owing to
the alleged associations of the two temples
their interlinking and their interdependence
the aradanaikar and trustee of the emberumanar
temple might claim to be regarded as an
office-holder in the athinathalwar temple. the learned judge did number decide the point
but he observed
but the idea of two temples or mutts of
equal rank and companyordinate and independent
authority or where one is the primary
institution and the other its subsidiary or
adjunct being linked together for certain
purposes of worship and observance of rituals
cannumber be said to be entirely foreign to hindu
numberions. he companycluded thus
of companyrse before he can succeed in the suit
the plaintiff has to make out that he being
the aradanaikar and trustee of the emberumanar
temple amounts to his holding an office in the
suit temple. the question whether the origin of this new case is found in
the judgment of the subordinate judge or that of
chandrasekara aiyar j. need number detain us. this is a new
case number disclosed in the plaint but after remand both the
parties directed their attention to this question and
adduced all the relevant evidence pertaining thereto. on remand the learned subordinate judge in an elaborate
judgment companysidered the said aspect of the case. he
considered the evidence under three heads namely  i
historical  ii  administrative and  iii  financial. on
the first head after companysidering the origin of the two
temples the learned judge came to the
conclusion that the idea that the emberumanar temple was
historically companynected with athinathalwar temple companyld number
be poopoohed. under the administrative head he found
that till 1926 emberumanar temple was merely a sub-shrine
attached to the bigger athinathalwar temple and the
trustees of the latter temple were exercising administrative
control over it as such. companying then to the financial side
he found that there was sufficient evidence to justify the
inference that the two were intimately companynected even
financially. passing on to the question of ceremonial and
religious association between these two temples the learned
judge found that there was similarity in the mode of routine
and day-to-day worship in the two temples but there was no
interlinking or interdependence between them in that matter. then the learned subordinate judge pointed out that
numberwithstanding that there was numberinterlinking and
interdependence in that matter they were so intimately
associated with each other in other religious rites and
ceremonies as to lead to the inference that the emberumanar
temple was after all only a sub-shrine attached to the main
temple of athinathalwar. then he pointed out that the
question in the said form was number before chandrasekara
aiyar j. but thought that it was open to him to go into
the said question. after going into the evidence he
finally came to the companyclusion that apart from historical
and secular association there had been also ceremonial and
religious association between the two temples and
therefore the emberumanar temple was numberhing but a sub-
shrine attached to the main temple of athinathalwar. on
that finding he further held that the plaintiff who was
admittedly the aradhanaikar of the said temple was virtually
an office-holder in the main temple. in the appeals filed
by the various parties against the decrees of the learned
subordinate judge the learned district judge of tirunelveli
reviewed the evidence once again under the said three heads
and came to a companytrary companyclusion. on the administrative
side he found that the emberumanar temple was number
subordinate to the
temple of athinathalwar in the sense that the authorities
of the latter temple companyld give orders to the authorities of
the emberumanar temple that is the former was number
subordinate to the latter temple administratively. on the
financial side he was equally emphatic that the two
institutions were number interdependent. on the religious or
ritual aspect the learned district judge held that as both
the institutions were companystructed in the same place there
must have been some companynection between the two and in that
sense in a general way the emberumanar temple might be
described as a sub-shrine. on the said facts the learned
judge posed the following question for his companysideration
what is the inference to be derived? on the evidence he
answered the question thus
i hold on the evidence that these
institutions are number interdependent or
intimately companynected in such a way that an
office-holder of emberumanar temple is
necessarily an office-holder of the athi-
nathalwar temple. i hold therefore that the
plain. tiff is number an office-holder of the
athinathalwar temple and therefore he is number
entitled to file a suit with regard to his
rights of precedence in being given
theertham. this finding is certainly a finding of fact based upon the
entire evidence in the case. in the second appeal the learned judge of the high companyrt
on a review of the evidence disagreed with the learned
district judge and accepted the finding of the learned
subordinate judge and held for similar reasons that the
plaintiff was virtually an office-holder in the main temple
he further held that the plaintiff companyld also be companysidered
to be the holder of the office of arulipad and in that
capacity also he was entitled to the first theertham and
other honumberrs. the first question is one of fact. the
learned district judge though he differed from the
subordinate judge held on a companysideration of the entire
evidence that the plaintiff was number an office-holder in the
athinathalwar temple. it has number been well settled that the
high companyrt has numberjurisdiction to entertain a second appeal
on the ground of erroneous finding of
fact however gross the error may seem to be. the judgment
of the learned judge does number disclose that there are any
permissible grounds for interference with the finding of the
district judge. the second ground of decision of the high
court is based upon a case that was raised for the first
time before it. numberhere in the plaints or before the two
subordinate companyrts the plaintiff attempted to sustain his
claim on his being the holder of the office of arulipad. the high companyrt therefore was number justified in allowing the
plaintiff to set out any such claim for the first time in
the second appeal. that apart it does number appear that
there is an office called arulipad. a division bench of the
madras high companyrt in vathiar venkatachariar v. p. ponnappa
ayyengar  1  had an occasion to define the word arulipad. there a claim was made to the office of theerthakar. on
the evidence it was held that the plaintiffs had number made
out the existence of any obligatory duty on the part of
theerthakar in the temple. in that companytext krishnan j.
observed thus
 the theerthakars have special
places allotted to them in the temple to
stand and recite and they are given the honumberr
of thertham and prasadam before the outsiders
get them and they have what is called an
arulipad that is their names are called
out by the archaka in a certain order when
if present they have to respond by saying
nayinde meaning i am here. it is therefore clear that there is numberoffice designated
as arulipad but that word only describes the duty of the
archaka to call their names to ascertain whether the
theerthakars are present in the ghoshti. there is no
evidence in this case that the plaintiff as a theerthakar
has any obligatory duty in the athinathalwar temple to
perform and therefore it is number possible to treat him as
an office-holder in that capacity in the said temple. this leads us to the argument of the companynsel for the
respondent that though it cannumber be said that the
emberumanar temple is a part or a subordinate of the
athinathalwar temple in the sense that all the
 1   1918  45 i.c. 959.
office-holders of the former are the office-holders of the
latter there is sufficient ritual companynection between the
two which in the companysciousness of the religious public is
treated as sufficiently intimate to make the one subordinate
to the other. this intimate religious companynection the
argument proceeds flows from the historical administrative
and financial ties however loose they may be that have
existed for over a century between the said two temples. this argument may have some validity in a theological
discussion or an ecclesiastical companyrt but cannumber obviously
be accepted in a civil companyrt. krishnaswami nayudu j. sum-
marizes the facts in his judgment which in his view
support the companyclusion that the emberumanar jeer was
virtually an office-holder in the athinathalwar temple. as
the companyrectness of the said facts is number questioned before
us it will be companyvenient to extract them in the words of
the learned judge
in all vaishnavite temples the alwars and
the acharyas take a prominent place in the
religious ceremonies and observances of the
temple. an attempt was made to show that
there has been an interlinking and
interdependence of the ritual and ceremonies
between these two temples but as rightly
found by the learned subordinate judge in the
matter of routine and day-to-day worship and
rituals such interlinking and interdependence
have number been satisfactorily made out. the
rituals or the manner of performing divine
service are uniform in every vaishnavite
temple. but as found by the learned
subordinate judge though a ritual in the main
temple is number dependent upon the ritual in the
sub-shrine the emberumanar deity being an
acharya is intimately associated with the
deity in the main temple in all the important
festivals the most important of which are the
margali and vaikasi festivals and other
religious ceremonies. there are several
mandagapadis for the athinatha alwar in the
emberumanar temple. there is sethu
thirumanjam for the athinatha alwar and embe-
rumanar deities on three occasions two of
them in the emberumanar temple and one in the
main
temple. then there is what is called alwar
sayanam which has to take place on the 10th
day of the margali festival and which is
performed in the main temple. there are
several other similar religious observances
where the two deities meet and certain rituals
and religious ceremonies are gone through. the daily ritual in a vaishnavite temple is a
routine matter and on occasions for instance
in the months of margali and vaikasi and on
other festival days there is necessity for
the alwars and the acharyas to meet the main
deity and ceremonies suitable to the occasions
are performed. it is number possible to imagine
a temple where god vishnu is installed without
the presence of the alwars and acharyas. alwars and acharyas are devotees of god vishnu
who have received divine recognition in their
lives and the festivals in relation to them
depict incidents of such manifestation of
divine grace to his devotees. it may also be mentioned that the installation
of each emberumanar jeer who it may be
stated is a sanyasi is in the athinatha alwar
temple under its dwajasthamba the flag staff
and the declaration of the status of the
succeeding jeer is made only ill the presence
of the deity of the main temple. we may also add to the said facts that at one time the share
of tasdik allowance to the emberumanar temple was paid
through the trustee of athinathalwar temple and there was
also an occasion when a trustee of the emberumanar temple
was dismissed by the trustee of the athinathalwar temple. on the other hand both the temples are under different
managements they have their separate officeholders
distinct rituals different budgets and separate
endowments and in the year 1926 on an application filed by
the emberumanar jeer the religious endowments board
declared the temple as an excepted temple indicating thereby
that the emberumanar temple was a separate legal entity and
that the said jeer was its hereditary trustee. the. only
question therefore is whether the said facts enable a
court to
hold that one temple is subordinate or part of the other
temple so that the office-holders of one temple would
become the office-holders of the -other. the facts clearly
establish that in fact and in law the two institutions are
different legal entities. in the past the trustees of
athinathalwar temple might have disbursed tasdik allowances
contributed by the government to the various temples
including the emberumanar temple but it is well knumbern that
for companyvenience of administration the services of the
trustees of a larger temple were very often utilized by the
government in that regard it might have been that sometimes
the amounts payable to the smaller temples were allowed to
lapse but there is numberhing on the record to show that it
was number out of negligence of the trustees of the minumber
shrines in number making any pressing demands on the trustees
of athinathalwar temple it might also have been that the
trustee of the bigger temple in his supervisory capacity
dismissed once in a way the trustee of a smaller shrine in
the locality but that companyld be explained by the paramount
position of the trustee of the bigger temple in the locality
compared to that of the minumber temples. these and such acts
may show that the trustee of the athinathalwar temple had
exercised similar supervisory companytrol in the past over the
minumber temples but that in itself does number make the trustee
of the temple of emberumanar an office-holder in the bigger
temple. it is well knumbern that in the past the temples were
under the supervision of the revenue board and later on
under various temple companymittees. it cannumber be suggested
that on that account. the trustees of the minumber temples were
officers in the revenue board or the temple companymittees as
the case may be. we cannumber also appreciate how the mutual
visits of the idols to the others temple and the honumberrs
shown to the idols on such visits companyld have any bearing on
the question to be decided though they reflect the intimate
relationship that exists between the lord and his ardent
devotee ramanuja in the public companysciousness. but such
cordial relationship existing between two independent
temples cannumber in the eye of law make the
one a part of the other. two independent institutions
legally cannumber except in the manner knumbern to law be
amalgamated into one institution by developing merely
sentimental attachment between them.


appellate jurisdiction criminal appeal number ii of 1949.
appeal by special leave from the judgment of the allaha-
bad high companyrt  harish chandra j.  dated 11th numberember
1949 in criminal miscellaneous case number 960 of 1949. the
facts of the case and the arguments of companynsel are set out
fully in the judgment. alladi krishnaswami iyer  alladi kuppuswami with him
for the appellant. c. setalvad attorney-general for india  v. n. sethi
with him  for the respondent. 1950. may 5. the judgment of kania c.j. and patanjali
sastri j. was delivered by
patanjali sastri j.--this is an appeal by special
leave from an order of the high companyrt at allahabad dismiss-
ing an application under sections 491 and 561-a of the companye
of criminal procedure for release of the appellant who was
arrested in pursuance of an extradition warrant issued by
the regional companymissioner of the united state of rajasthan
who is the principal officer representing the crown in the
territory of that state. the appellant who is a member of the uttar pradesh civil
service was appointed in 1948 to serve what was then knumbern
as the tonk state in various capacities and during such
service he is alleged to have helped the nawab in obtaining
the sanction of the government of india to the payment of
rs. 14 lakhs to the nawab out of the state treasury for the
discharge of his debts and to have induced the nawab by
threats and deception to pay the appellant in return for
such help sums totalling rs. 3 lakhs on various dates. on
these allegations the appellant is charged with having
committed offences under section 383  extortion  and
section 420  cheating  of the indian penal companye which are
extraditable offences under the indian extradition act 1903
 hereinafter referred to as the act . the warrant was
issued under section 7 of the act to the district magis-
trate nainital where the appellant was residing after
reverting to the service of the uttar pradesh government to
arrest and deliver him up to the district magistrate of
tonk. the appellants case is that the sum of rs. 3 lakhs was
paid to him by the nawab to be kept in safe deposit in a
bank for the nawabs use in delhi that numberoffence was
committed and that the amount was returned when demanded by
the authorities of the tonk state. the warrant was issued
mala fide on account of enmity. various technical objections
were also raised to the validity of the warrant and to the
jurisdiction of the magistrate at nainital to take companyni-
sance of the matter and arrest the appellant. the high companyrt
overruled all the objections and dismissed the application
for the release of the appellant. on behalf of the appellant mr. alladi krishnaswami aiyar
contended that section 7 of the act under which the warrant
purports to have been issued had numberapplication to the case
and that the entire proceedings before the magistrate were
illegal and without jurisdiction and should be quashed. learned companynsel relying on section 18 of the act which
provides that numberhing in chapter iii  which companytains section
7  shall derogate from the provisions of any treaty for the
extradition of offenders submitted that the treaty entered
into between the british government and the tonk state on
the 28th january 1869 although declared by section 7 of
the indian independence act 1947 to have lapsed as from
the 15th august 1947 was companytinued in force by the stand-
still agreement entered into on the 8th august 1947 that
that treaty exclusively governed all matters relating to
extradition between the two states and that inasmuch as it
did number companyer the offences number charged against the appel-
lant numberextradition of the appellant companyld be demanded or
ordered. the attorney-general appearing for the government ad-
vanced three lines of argument in answer to that companytention. in the first place the standstill agreement entered into
with the various indian states were purely temporary ar-
rangements designed to maintain the status quo ante in
respect of certain administrative matters of companymon companycern
pending the accession of those states to the dominion of
india and they were superseded by the instruments of acces-
sion executed by the rulers of those states. tonk having
acceded to the dominion on the 16th august 1947 the stand-
still agreement relied on by the appellant must be taken to
have lapsed as from that date. secondly the treaty was no
longer subsisting and its execution became impossible as
the tonk state ceased to exist politically and such sover-
eignty as it possessed was extinguished when it companyenanted
with certain other states with the companycurrence of the
indian government to unite and integrate their territories
in one state with a companymon executive legislature and
judiciary by the name of the united state of rajasthan
the last of such companyenants which superseded the earlier
ones having been entered into on the 30th march 1949.
lastly even assuming that the treaty was still in operation
as a binding executory companytract its provisions were in no
way derogated from by the application of section 7 of the
act to the present case and the extradition warrant issued
under that section and the arrest made in pursuance thereof
were legal and valid and companyld number be called in question
under section 491 of the criminal procedure companye. as we are
clearly of opinion that the appellants companytention must fail
on this last ground we companysider it unnecessary to pronumbernce
on the other points raised by the attorneygeneral especially
as the issues involved are number purely legal but partake also
of a political character and we have number had the views of
the governments companycerned on those points. it was number disputed before us that the present case
would fall within section 7 of the act all the requirements
thereof being satisfied if only the applicability of
the section was number excluded under section 18 by reason of
the extradition treaty of 1869 assuming that it still
subsists. the question accordingly arises whether extradi-
tion under section 7 for an offence which is number extradita-
ble under the treaty is in any sense a derogation from the
provisions of the treaty which provides for the extradition
of offenders for certain specified offences therein called
heinumbers offences companymitted in the respective territories
of the high companytracting parties. under article 1 the gov-
ernment of the tonk state undertakes to extradite any per-
son whether a british or a foreign subject who companymits a
heinumbers offence in british territory. a reciprocal obliga-
tion is cast by article 2 on the british government to
extradite a subject of tonk companymitting such an offence
within the limits of that state. article 3 provides inter
alia that any person other than a tonk subject companymitting a
heinumbers offence within the limits of the tonk state and
seeking asylum in british territory shall be apprehended and
the case investigated by such companyrt as the british govern-
ment may direct. article 4 prescribes the procedure to be
adopted and the companyditions to be fulfilled before extradi-
tion companyld be had and article 5 enumerates the offences
which are to be deemed as companying within the category of
heinumbers offences which however do number include the of-
fences charged against the appellant. the argument on behalf of appellant was put thus the
maxim expressio unius est exclusio alterius is applicable
as pointed out by mcnair on the law of treaties  1938--pp. 203 204  to the interpretation of treaties. according to
that rule the treaty in question should be read as allowing
extradition only for the specified offences and for no
others that is to say as implying a prohibition of extra-
dition by either state for any other offence than those
enumerated in article 5. further while the treaty entitled
each of the high companytracting parties to demand extradition
on a reciprocal basis an unilateral undertaking by the
indian government to grant extradition for an offence for
which it companyld number claim extradition under the treaty
violates the principle of reciprocity which is the recog-
nised basis of all international companypacts for extradition. such an arrangement places the state of tonk in a more
advantageous position which was number companytemplated by the
framers of the treaty. and where as here the person whose
surrender is demanded is an indian subject who is number liable
to be extradited under the treaty his surrender under
section 7 trenches upon the liberty of the subject. in so
far therefore as that section authorises extradition of a
person especially when he is an indian subject for an
offence which is number extraditable under the treaty it
derogates from the provisions of the treaty within the
meaning of section 18 and its application to the present
case is thereby excluded. the argument proceeds on a miscon-
ception and cannumber be accepted. numberdoubt the enumeration of heinumbers offences in arti-
cle 5 of the treaty is exhaustive in the sense that the high
contracting parties are number entitled under the treaty to
claim extradition of criminals in respect of other offences. but we cannumber agree that such of enumeration implies a
prohibition against either those parties providing by its
own municipal laws for the surrender of criminals for other
offences number companyered by the treaty. it is difficult to
imagine why the companytracting states should place such a
fetter on their respective legislatures in advance number only
in regard to their subjects but also in regard to alien
offenders for if such prohibition is at all to be implied
it should companyer both. as pointed out in wheatons interna-
tional law there is numberuniversally recognised practice that
there can be numberextradition except under a treaty for some
countries grant extradition without a. treaty  fourth
edition sections 116  a  to  d  pp. 186-189 . numberdoubt the
constitutional doctrine in england is that the crown makes
treaties with foreign states for extradition of criminals
but those treaties can only be carried into effect by act of
parliament  ibid--section 116  b  p. 187 . accordingly
the extradition acts are made applicable by an order in
council in the case of each state which enters into an
extradition treaty
with the crown and they are made applicable only so far as
they can be applied companysistently with the terms and companydi-
tions companytained in the treaty. under such a system where the
high companytracting parties expressly provide that their own
subjects shall number be delivered up as in the case of the
treaty between england and switzerland the power to arrest
and surrender does number exist regina v. wilson 1 . this it
was observed by companykburn c.j. in that case was a serious
blot on the british system of extradition and the royal
commission on extradition of which he was the chairman
recommended in their report that reciprocity in this matter
should numberlonger be insisted upon whether the criminal be a
british subject or number. if he has broken the laws of a
foreign companyntry his liability to be tried by them ought number
to depend upon his nationality  the companyvenience of
trying crimes in the companyntry where they were companymitted is
obvious. it is very much easier to transport the criminal
to the place of his offence than to carry all the witnesses
and proofs to some other companyntry where the trial is to be
held  wheaton section 120  a  pp. 197 198 . evidently
similar companysiderations led to the passing of the act by the
indian legislature providing for the surrender of criminals
including indian subjects for a wide variety of offences
with power to the governumber-general in companyncil to add to the
list by numberification in the gazette generally for all states
or specially for any one or more states. this statutory
authority to surrender cannumber of companyrse enlarge the obliga-
tion of the other party where an extradition treaty has been
entered into and this is made clear by section 18. but it
is equally clear that the act does number derogate from any
such treaty when it authorises the indian government to
grant extradition for some additional offences thereby
enlarging number curtailing the power of the other party to
claim surrender of criminals. number does the act derogate in
the true sense of the term from the position of an indian
subject under the treaty of 1869. that treaty created no
right in the subjects of either
 1  3 q.b.d. 42.
state any more than in fugitive aliens number to be extradited
for other than heinumbers offences. it is numbereworthy that
even in wilsons case  ubi supra  where there was an excep-
tion in the treaty in favour of the subjects of the company-
tracting states the decision was based number on the ground
that the treaty by itself companyferred any right or privilege
on english subjects number to be surrendered but on the ground
that the order in companyncil applying the extradition act
1870 to switzerland limited its operation companysistently
with the terms of the treaty to persons other than english
subjects. it is therefore number companyrect to say that by
providing for extradition for additional offences the act
derogates from the rights of indian citizens under the
treaty or from the provisions of the treaty. we are accord-
ingly of opinion that the arrest and surrender of the appel-
lant under section 7 of the act is number rendered unlawful by
anything companytained in the treaty of 1869 assuming that it
still subsists.the appeal fails and is dismissed. fazl ali j.--i have had the advantage of reading the
judgments prepared by my brothers sastri and mukherjea who
have given different reasons for arriving at the same company-
clusion. as i am inclined to agree with the line of reason-
ing in both the judgments i companycur in the order that this
appeal should be dismissed. mahajan j.--i agree with the judgment going to be deliv-
ered by my brother mukherjea. for the reasons given therein
this appeal should be dismissed. mukerjea j.--this appeal which has companye up before us on
special leave granted by this companyrt is directed against a
judgment of harish chandra j. of the allahabad high companyrt
dated 11th of numberember 1949 by which the learned judge
dismissed an application of the appellant under sections 491
and 561-a of the criminal procedure companye. the facts which are material for purposes of this
appeal are number in companytroversy and may be shortly stated as
follows the appellant dr. ram babu
saksena who is a resident of the united provinces was a
member of the executive civil service in that province and
during his official career extending over so years held
various important posts both in and outside that province. in january 1948 he was appointed administrator of the tonk
state where a dispute was going on at that time regarding
succession to the rulership of the state between two rival
claimants. on 11th of february 1948 the dispute was set-
tled and ismail ali khan was recognised as the nawab or the
ruling prince of the state and appellant was then appointed
dewan and vice-president of the state companyncil of which the
nawab was the president. in april 1948 the tonk state
together with several other states in rajputana integrated
and formed together the united state of rajasthan and the
appellant thereupon became the chief executive officer of
the rajasthan government. towards the end of july 1948 he
got anumberher special post under the rajasthan government but
soon afterwards he took leave and proceeded to naini tal
where he has been residing since then. on 23rd may 1949
he was arrested at naini tal on the strength of a warrant
issued under section 7 of the indian extradition act 1903
by shri v.k.b. pillai regional companymissioner and political
agent of the united state of rajasthan. the warrant which
is dated the 8th of may 1949 was addressed to the district
magistrate of naini tal and directed the arrest of dr.
saksena and his removal to rajasthan to be delivered to the
district magistrate of tonk for enquiry into certain of-
fences against the laws of that state which he was alleged
to have companymitted. after his arrest the appellant was
released on bail in terms of the warrant itself and was
directed to be present before the district magistrate of
tonk on the 7th of june 1949. the allegations against the
appellant in substance are that while he was the dewan of
the tonk state and vice-president of the state companyncil the
nawab being in urgent need of money to meet his personal
demands requested dr. saksena to help him in obtaining for
his own use
a sum of rs. 14 lakhs from the state treasury. dr. saksena
promised his assistance on companydition that the nawab would
give him a sum of rs. 3 lakhs out of this amount as his
share. by dint of his efforts the appellant succeeded in
inducing the state ministry to pay the full amount of rs. 14
lakhs to the nawab in different instalments. the first
instalment amounting to over rs. 21/2 lakhs was paid on
31st march 1948 and a further sum of rs. 5 lakhs was paid
on 21st of april following. on that date it is said the
nawab paid to dr. saksena a sum of rs. 150000 which was
only half of the promised amount. a few days later dr.
saksena pressed for payment of the balance and held out
threats to the nawab that in case the money was number paid
the latter would find himself in serious difficulties as his
position as a ruling prince of the state was number at all
secure and there were grave charges against him. as a
result of these threats and misrepresentations the nawab
was induced to pay to the appellant the balance of rs. 150000 in two instalments. the matter became knumbern to the
regional companymissioner some time in numberember 1948 and he
called dr. saksena for an interview and succeeded in getting
back from him the entire sum of rs. 3 lakhs which the nawab
had paid. on the basis of these facts dr. saksena has been
accused of having companymitted offences under sections 383 and
420 of the indian penal companye. on 3rd june 1949 dr. saksena filed an application in
the high companyrt of allahabad under sections 491 and 561-a of
the criminal procedure companye companyplaining of illegal and
unauthorised detention under the warrant of the regional
commissioner of rajputana dated the 8th of may 1949. the
legality of the warrant and of arrest thereunder was at-
tacked on a number of grounds. it was companytended first of
all that the applicant was falsely implicated by the nawab
on account of enmity which grew up between them for various
reasons and the allegations made were totally false. it was
next said that the district magistrate of naini tal companyld
number take companynizance of the matter without the previous
sanction of the u.p. government under section 197 of the
criminal procedure companye and that the sanction of the rajpra-
mukh of the united state of rajasthan was also necessary
before any proceeding companyld be initiated. the third and the
main companytention was that the alleged offences being said to
have been companymitted in the state of tonk the case would be
governed by the provisions of the extradition treaty entered
into between the british government and the tonk state on
28th of january 1869 and as neither extortion number
cheating was mentioned in the list of offences for which
extradition was permissible under that treaty the warrant
of arrest issued under section 7 of the extradition act was
wholly illegal and unauthorised. it is admitted that these
offences are specified in the schedule to the indian extra-
dition act of 1903 but it was said that section 18 of the
extradition act expressly made the act inapplicable when its
provisions derogated from those of a treaty. lastly it
was urged that the extradition warrant was a mala fide step
taken by the nawab of tonk with the help of his friend the
regional companymissioner of rajasthan for ulterior purposes and
that it companystituted a fraud upon the statute and an abuse of
the processes of law. the application was heard by
harish chandra j. sitting singly and by a judgment dated
11th of numberember 1949 which fully and elaborately dis-
cussed the different points raised in the case the learned
judge rejected the application of the petitioner. numbercer-
tificate was given by the high companyrt under section 205  1
of the government of india act 1935 and the present appeal
has been brought to this companyrt on the strength of special
leave granted by it. sir alladi krishnaswami aiyar who appeared in support
of the appeal has very properly number pressed before us all
the points that were canvassed on behalf of his client in
the companyrt below. his companytention in substance is that the
rights of extradition in the present case should be regulat-
ed exclusively by the provisions of the extradition treaty
that was entered into between the tonk state and the british
government
on 28th of january. 1869 and was subsequently modified
by a supplementary treaty in the year 1887. this treaty it
is argued has number been abrogated or rendered ineffective in
any way by reason of the merger of the tonk state in the
united state of rajasthan and the decision of the high
court on this point is erroneous. according to the provi-
sions of this treaty numberextradition is permissible in
respect to offences of extortion and cheating with
which the appellant is charged and the warrant of arrest
issued by the political agent is companysequently illegal and
ultra vires. it is companyceded by sir alladi that if section 7
of the indian extradition act 1903 is held to be applica-
ble to the facts of the present case the warrant of arrest
issued by the political agent of rajasthan companyld number be
assailed as invalid or inumbererative but his companytention is
that section 18 of the extradition act makes an express
reservation in cases where treaty rights exist and to the
extent that the provisions of chapter iii of the extradition
act derogate from those of any treaty relating to extradi-
tion of offenders the treaty is entitled to prevail. to appreciate the merits of this companytention it may be
convenient to refer at this stage to a few sections of the
indian extradition act of 1903 as well as to the material
provisions of the extradition treaty between the tonk state
and the british government which have a bearing upon the
present question. chapter 111 of the indian extradition act deals with
surrender of fugitive criminals in case of states other than
foreign states and section 7 with which this chapter opens
provides as follows

where an extradition offence has been companymitted or
is supposed to have been companymitted by a person number being a
european british subject in the territories of any state
number being a foreign state and such person escapes into or
is in british india and the political agent in or 1or such
state issues a warrant addressed to the district magis-
trate of any district in which such person is believed to
be  or if such person is believed to be in any presidency
town
to the chief presidency magistrate of such town  for his
arrest and delivery at a place and to a person or authority
indicated in the warrant such magistrate shall act in pursu-
ance of such warrant and may give directions accordingly. the expression extradition offence has been defined
in section 2  b  and means any such offence as is described
in the first schedule to the act. the first schedule gives
a catalogue of offences described with reference to specific
sections of the indian penal companye and it includes offences
punishable under sections 383 and 420 of the indian penal
code prima facie it seems therefore that all the companyditions
laid down in section 7 of the extradition act are fulfilled
in the present case. the warrant has been issued by the
political agent of a state which is number a foreign state as
defined by the act and the offences with which the appellant
is charged are extradition offences as specified in sched-
ule i. sir alladis companytention as stated above is that
section 7 which is in chapter iii of the extradition act
is companytrolled by section 18 which lays down that numberhing in
this chapter shall derogate from the provisions of any
treaty for the extradition of offenders and the procedure
provided by any such treaty shall be followed in any case to
which it applies and the provisions of this act shall be
modified accordingly. turning number to the extradition treaty between the tonk
state and the british government it will be seen that the
first article of the treaty provides for extradition where
a british subject or a foreign subject companymits a heinumbers
offence in british territory and seeks shelter within the
limits of the tonk state. the second article deals with an
offender who is a subject of the tonk state and having
committed a heinumbers offence within the state seeks asylum
in british territory while the third article relates to a
person other than a tonk subject who companymits a heinumbers
offence within the limits of the tonk state and seeks asylum
in british territory. the companyditions
under which extradition companyld be had in all such cases and
the procedure to be followed are laid down in article 4.
article 5 then gives a list of offences which would be
deemed as companying within the category of heinumbers offences. it is number disputed that neither cheating number extortion
are mentioned in this list. the whole companytroversy there-
fore centers round the point as to whether in view of the
provisions of the extradition treaty mentioned above extra-
dition companyld legally be made or demanded in respect of
offences companying under sections 383 and 420 of the indian
penal companye which are mentioned in the list of offences
specified in schedule i to the extradition act but do number
find a place in article 5 of the treaty. companyld it be said
that the provisions of the extradition act derogate in this
respect from the treaty between the tonk state and the
british government and companysequently the terms of the treaty
would override the statute as indicated in section 18 of the
extradition act ? the learned attorney-general who appeared for the
government of india put forward a two-fold argument in
reply to the companytention of sir alladi. he argued in the
first place that section 18 of the indian extradition act
has numberapplication to the present case inasmuch as the
extradition treaty between the tonk state and the british
government upon which the appellant relies does number
subsist and cannumber be enforced at the present day. the
other companytention is that even if the treaty still subsists
there is numberhing in its terms which prohibits extradition
for offences other than those described as heinumbers offences
in article 5. it is argued that to-derogate means to
detract or to take away and the schedule to the extradi-
tion act by mentioning certain offences which do number occur
in the list of heinumbers offences as given in the treaty
cannumber be said to have derogated from the terms of the
treaty. both these points were fully argued on both sides
and it is clear that if on either of these points a decision
is reached adverse to the appellant the appeal is bound to
fail. so far as the first point is companycerned mr. setalvad has
drawn our attention to various political changes that have
come over the tonk state since the companyclusion of the extra-
dition treaty in 1869. in 1869 tonk was one of the native
states in india with a separate political existence of its
own and the treaty that was entered into in that year was
meant to regulate exclusively the rights and obligations
in matters of extradition of offenders as between the tonk
state on the one hand and the british government on the
other. in 1887 there was a modification of the treaty but
it is number disputed that the modification made certain alter-
ations in the procedure which are number material for our
present purpose. the major political change with regard to all indian
states which vitally affected their existing treaties with
the british government occurred on the 15th of august 1947
when india became an independent dominion. section 7 of the
indian independence act provided inter alia that

as from the appointed day--

the suzerainty of his majesty over the indian states
lapses and with it all treaties and agreements in force at
the date of the passing of this act between his majesty and
the rulers of indian states
as a result of this provision the extradition treaty
between tonk and the british government must be deemed to
have lapsed with effect from the 15th of august 1947. if
matters stood there obviously there would be numberhing left
upon which section 18 of the indian extradition act companyld
possibly operate. there was however a standstill agreement
entered into by the indian dominion with the indian states
the first article of which runs as follows
1.  1  until new agreements in this behalf are made
all agreements and administrative arrangements as to matters
of companymon companycern number existing between the crown and any
indian state shall in so far as may be appropriate companytin-
ue as between the dominion of
india or as the case may be the part thereof and the
state. in particular and without derogation from the
generality of sub-clause  1  of this clause the matters
referred to above shall include the matters specified in
the schedule to this agreement. the schedule does mention extradition as one of the
matters to which the standstill agreement is applicable. this was certainly intended to be a temporary arrangement
and mr. setalvad argues that as there was numbertreaty in the
proper sense of the term
but only a substitute for it in the shape of a temporary
arrangement section 18 of the extradition act which
expressly mentions a treaty cannumber be applicable. while
conceding that prima facie there is force in the companyten-
tion-i think that this would be taking a too narrow view
of the matter and i should assume for the purposes of this
case that under the standstill agreement the provisions of
the treaty of 1869 still companytinued to regulate matters
of extradition of criminals as between the tonk state on
the one hand and the indian dominion on the other till any
new agreement was arrived at between them. though the standstill agreement was to take effect
after the establishment of the indian dominion the in-
strument was actually signed on 8th of august 1947. on
the 16th of august 1947 tonk acceded to the dominion of
india and one of the terms in the instrument of acces-
sion is that the ruler accepts the position that with
regard to matters specified in the schedule to the
instrument the dominion legislature would be entitled to
make laws for the state. extradition including the
surrender of criminals and accused persons to parts of his
majestys dominion outside india is one of the matters
specified in the schedule. thus the state gave up and
surrendered in favour of the dominion legislature its right
to legislate in respect to extradition after the date of
accession. whether the existing extradition treaty was
ipso facto abrogated by this instrument of accession is number
so clear. obviously the indian dominion
could pass any legislation it liked regarding matters of
extradition between the tonk state and any other state
either indian or foreign. numbersuch law was however
passed by the indian legislature except that very
recently under an adaptation order the extradition act
of 1903 has been made applicable to states under group b
in the indian companystitution in which rajasthan is included. it is to be numbered that the extradition act itself which is
made applicable to the united state of rajasthan companytains
an express provision in section 18 which safeguards exist-
ing treaty rights. it is somewhat unusual that an extradi-
tion treaty would be subsisting even after the state had
acceded to india but we have numbermaterials before us upon
which we companyld definitely hold that the treaty has been
expressly superseded or abrogated by the indian legislature. the next important thing is that in april 1948 there
was a companyenant entered into by the rulers of nine states
including tonk by which it was agreed by and between the
covenanting parties that the territories of these nine
states should be integrated into one state by the name of
the united state of rajasthan. this was done with the
concurrence of the dominion of india. later on on 12th of
may 1949 mewar also became a party to this companyenant and
the united state of rajasthan was reconstituted by the
integration of the territories of all the ten states. by the
covenant of merger the companyenanting states agreed to unite
and integrate their territories in one state knumbern as the
united state of rajasthan and to have a companymon executive
legislature and judiciary. the rulers of all the states
became members of the companyncil of rulers and the president
was designated as the raj pramukh of the united state. article vi of the companyenant of merger runs as follows

the ruler of each companyenanting state shall as soon
as practicable and in any event number later than the first day
of may 1948 make over the administration of his state to
the raj pramukh and thereupon --
 a  all rights authority and jurisdiction belonging to
the ruler which appertain or are incidental to the govern-
ment of the companyenanting state shall vest in the united state
and shall hereafter be exercisable only as provided by this
covenant or by the companystitution to be framed thereunder
 b  all duties and obligations of the ruler pertain-
ing or incidental to the government of the companyenanting state
shall devolve on the united state and shall be discharged by
it and
 c  all the assets and liabilities of the companyenanting
state shall be the assets and liabilities of the united
state. the question number is how far was the extradition
treaty between the tonk state and the british government
affected by reason of the merger of the state into the
united state of rajasthan. when a state relinquishes its
life as such through incorporation into or absorption by
anumberher state either voluntarily or as a result of companyquest
or annexation the general opinion of international jurists
is that the treaties of the former are automatically termi-
nated. the result is said to be produced by reason of company-
plete loss of personality companysequent on extinction of state
life 1 . the cases discussed in this companynection are gener-
ally cases where independent states have ceased to be such
through companystrained or voluntary absorption by anumberher with
attendant extinction of the formers treaties with other
states. thus the forceable incorporation of hanumberer into
the prussian kingdom destroyed the previous treaties of
hanumberer. the admission of texas into the united states of
america by joint resolution extinguished the treaties of the
independent republic of texas 2 . the position is the same
when korea merged into japan. according to oppenheim whose
opinion has been relied upon by sir alladi numbersuccession
of rights and duties ordinarily takes place in such cases
and as political and personal treaties presuppose the exist-
ence of a companytracting state

vide hyde on international law vol. iii p. 1529.  2
vide hyde on international law vol. ii1 p. 1531
they are altogether extinguished. it is a debatable point
whether succession takes place in cases of treaties relating
to companymerce or extradition but here again the majority of
writers are of opinion that they do number survive merger or
annexation 1 . the remarks quoted above do number however seem quite
appropriate to a case of the present description. here there
was numberabsorption of one state by anumberher which would put an
end to the state life of the former and extinguish its
personality. what happened here was that several states
voluntarily united together and integrated their territories
so as to form a larger and companyposite state of which every
one of the companyenanting parties was a companyponent part. there
was to be one companymon executive legislature and judiciary
and the companyncil of rulers would companysist of the rulers of all
the companyenanting states. it may number be said therefore that
the companyenanting states lost their personality altogether and
it is to be numbered that for purposes of succession of ruler-
ship and for companynting votes on the strength of population
and other purposes the companyenant of merger recognises a
quasi-separation between the territories of the different
states. but although such separation exists for some pur-
poses between one state territory and anumberher it is clear
that the inhabitants of all the different states became
from the date of merger the subjects of the united state of
rajasthan and they companyld number be described as subjects of any
particular state. there is numbersuch thing as subject of the
tonk state existing at the present day and the ruler of tonk
cannumber independently and in his own right exercise any form
of sovereignty or companytrol over the tonk territory. the
government which exercises sovereign powers is only one
even though the different rulers may have a voice in it. it
seems to us that in those altered circumstances the extradi-
tion treaty of 1869 has become entirely incapable of
execution. it is number possible for the tonk state which is
one of the companytracting parties to act in accordance with the
terms of the treaty for it has numberlonger any independent

oppenheim on international law vol. i p. 152
authority or sovereign rights over the tonk territory and
can neither make number demand extradition. when as a result
of amalgamation or merger a state loses its full and inde-
pendent power of action over the subject-matter of a treaty
previously companycluded the treaty must necessarily
lapse 1 . it cannumber be said that the sovereignty of the
tonk state in this respect is number vested in the united state
of rajasthan. the authority so far as extradition was
concerned was already surrendered by the tonk state in
favour of the dominion government by the instrument of
accession. but even assuming that these treaty rights companyld
devolve upon the united state of rajasthan by reason of
article 6 of the companyenant of merger the latter it seems to
me companyld be totally incapable of giving effect to the terms
of the treaty. as has been said already there companyld be no
such thing as a subject of the tonk state at the present
moment and article 2 of the treaty which provides for extra-
dition of tonk subjects accused of having companymitted heinumbers
offences within tonk territory and seeking asylum elsewhere
would be wholly infructuous. the united state of rajasthan
could number possibly demand extradition on the basis of this
article and if reciprocity which is the essence of an
extradition agreement is gone the treaty must be deemed to
be void and inumbererative. the decision in terlinden v. ames  2  which was relied
upon by sir alladi in companyrse of his arguments rather forti-
fies the view that i have taken. the question there was
whether an extradition treaty between prussia and the united
states of america which was entered into in 1852 companyld be
given effect to after the incorporation of prussia into the
german empire. the question was answered in the affirmative. it was pointed out inter alia that the companystitution of the
german empire left sufficient independent power and sover-
eignty to the states companyposing the companyfederation to enable
them to act upon these treaties and it was observed by chief
justice fuller who delivered the opinion of the companyrt that
where sovereignty in respect

vide hyde on international law vol. iii. p. 1535.  2
184 u. s. 270.
to the execution of treaties is number extinguished and the
power to execute remains unimpaired outstanding treaties
cannumber be regarded as void. this is the real criterion and
as obviously the power of the tonk state to execute the
treaty is altogether gone after the companyenant of merger the
treaty cannumber but be regarded as void. the other case cited by sir alladi viz. that of lazard
brothers v. midland bank limited 1  has absolutely numberbearing
on this point. it laid down the well accepted proposition of
international law that a change in the form of government of
a companytracting state does number put an end to its treaties. the treaty entered into by the czarist russia companyld be given
effect to after the revolution once the new government was
recognised as a person in international law. my companyclusion therefore is that the extradition treaty
between the tonk state and the british government in 1869 is
number capable of being given effect to in the present day in
view of the merger of the tonk state in the united state of
rajasthan.