The main legal point established in the judgment is that the defendant's order of excommunication was issued in good faith and without malice, and that there was no legal ground for damages.

1. The plaintiff, a Konkani Brahmin of Mangalore, dined on 24th October 1920 in company with members of various communities, including three panchamas. This was reported as a caste offence by members of his caste to the defendant the Swami of Kasi Mutt, who is the recognized tribunal for deciding such matters. The defendant took care to discover the true facts of the case (Ex. 18, 20th November 1920) and interviewed several persons on be-of the plaintiff; Sreenivasa Pai and Venkata Rao first on 11th November, and again on 15th November, two Bhandarakars at about the same date; and, after 20th November a regular deputation with full instructions of all that had to be said the plaintiffs behalf. There is some suggestion that these persons instead, of stating plaintiffs case merely applied for an adjournment and fuller inquiry. This is very improbable, but the point need not be laboured because plaintiff himself sent to the defendant a document Ex. G, which is obviously the statement of his case. He admitted the defendants right to take prompt and immediate action in the matter and did not deny the truth of the complaint made against him; but he detailed several instances of other persons infringing the rules of the caste, and evidently meant to confront the defendant with the alternatives of condoning or of condemning all the offences that were set forth.

2. After receipt of this document the defendant excommunicated the plaintiff by his order Ex. J. of 23rd November 1920 "until further orders." Thereupon the plaintiff attempted to enter the temple frequented by his caste, and on admission being refused, launched a suit on 6th May 1921, for a declaration that the order of the defendant was illegal and the plaintiff was "in caste" (O.S. No. 52 of 1921) and another suit 22nd November 1921 for Rs. 7,500 damages on the ground that the order was illegal and libellous (O.S. No. 109 of 1921.)

3. The lower Court dealing with both suits in one judgment, decreed that the defendants order was null and void (O.S. No. 52 of 1921) and plaintiff was entitled to full damages (O.S. No. 109 of 1921.)

4. The defendant appeals against both decrees.

5. From the above recital of fact it is difficult to see how the plaintiffs private quarrel with his caste can concern the public Courts of law. The defendants order is denounced in the plaint of O.S. No. 52 of 1921 as illegal because no opportunity was given to plaintiff to offer his defence; in other words because the fundamental principle of alteram partem audi was violated. But obviously not only was defendant offered, but he availed himself of the opportunity of presenting his defence. To urge that a charge must be framed, that a personal interview is essential, or that the Guru must sit at the feet of his disciple and learn the correct interpretation of the sacred law, is idle embroidery of the main principle. The defendant who received the various deputations sent by the plaintiff, and perused Ex. G cannot by any stretch of imagination be said to have offended fundamental principle.

6. Then in both suits an issue of malice was raised. Once it is found that the recognized tribunal has exercised its function in a legal manner, when condemning an admitted offence, it requires overwhelming proof to sustain a charge of malice. In these suits the proof adduced is meagre beyond description. Quite possibly the persons who formally brought the matter to the notice of the defendant may have been actuated by malice; but unless he is proved to have conspired with those persons, that cannot affect the defendant. There is no evidence of conspiracy. Plaintiffs witness 9, a respectable vakil and Bank president, candidly admits that in the several interviews which he had with the defendant he did not appear to him to be actuated by malice. The learned Subordinate Judge (para. 53) finds that the defendant wished to make an example of the plaintiff for presuming to address to his Holiness a lawyers letter Ex. F a