Madras High Court
Sadhu Sri Vaishnavar Nambi Srinivasa ... vs K.K.V. Annan Srinivasachariar And ... on 5 January, 1989
Equivalent citations: AIR1990MAD375, AIR 1990 MADRAS 375, (1989) 103 MADLJ199
JUDGMENT
1. The first defendant in O.S. 550 of 1977, District Munsif Court, Tiruchirapalli, is the appellant in this civil miscellaneous appeal. That suit was instituted by the first respondent herein under the following circumstances. According to the case of the first respondent, in Sri Ranga-nathaswami temple at Srirangam from time immemorial, the recitation of Divya Pra-bandam before Sri Ranganathaswami by Adyabaga Goshti had been in vogue whenever the deity is taken out in procession outside Aryabatal vasal and for this mirasi service, the service holders had been remunerated and this mirasi right had been vested in the family of the first respondent and his ancestors. The first respondent claimed that his ancestors and others were doing this service and receiving the perquisites and pecuniary remuneration for several generations and this is in the nature of a hereditary right and mirasi service. It was also claimed that the first respondent had the right of appointing competent persons for the recitation of Divya Prabandam in the Goshti and that the ancient and established custom and practice obtaining was that the first respondent should exercise the right to appoint persons for the recitation of Divya Prabandam and also to receive remuneration therefor. The first respondent pleaded that at the instigation of the appellant, the second respondent herein had purported to question the sole and exclusive mirasi right of the first respondent and his exercise thereof and attempts were also made to introduce an innovation by allowing third parties to join the Adayabaga Goshti against the established usage and customs and that, according to the first respondent, constituted an infringement of his right. The first respondent, therefore, claimed that it had become necessary for him to establish the hereditary right of his family in respect of Adayabaga Goshti and for restraining the appellant and others from interfering with the enjoyment of that right by the first respondent and others.
2. In the written statement and additional written statement filed by the appellant, the custom and practice put forth by the first respondent that the members of his family and their ancestors have done the mirasi service and acquired a hereditary right to do so was denied. The Adyabaga Goshti. according to the appellant functioned independently and not under the control of either the first respondent or his family members. The appellant claimed that he had been functioning as the Head of the Adyabaga Goshti without reference to the first respondent that third parties had been allowed to do the service contrary to the custom and usage was denied. The appellant also disputed the claim of the first respondent on the ground that during the lifetime of the father of the first respondent, he could not project any mirasi rights which had not been put forth by his father. An objection was also raised that the suit instituted by the first respondent was not maintainable in the Civil Court and was barred by the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as the Act). In the written statement and additional written statement filed by the second respondent, the claim of the first respondent was disputed and the temple claimed that it had the final and decisive say in the composition and constitution of the Goshti. Similar defences were raised by the fourth respondent in the written statement filed by him.
3. On the aforesaid pleadings of the parties, issue No. 1 was framed in the suit with reference to the jurisdiction of the civil Court to entertain the suit. A joint memo was filed by the parties to the suit inviting the Court to give a finding on the question of jurisdiction. The learned District Munsif, Tiruchirapalii on a consideration of the plaint allegations and the defence raised in the written statements held that the right sought to be agitated in the suit did not relate to any office or the performance of duties connected therewith and further that under S. 63(5) read with S. 108 of the Act, the matter agitated would fall within the exclusive jurisdiction of the Deputy Commissioner. Hindu Religious and Charitable Endowments Department, and therefore, the jurisdiction of the civil Court was barred. Aggrieved by this, the first respondent herein preferred an appeal before the Second Additional Subordinate Judge, Tiruchirapalli, in A. S. 132 of 1982. The learned Subordinate Judge, however, took the view that the right agitated by the first respondent would be in the nature of a civil right cognizable by a civil Court and that a suit to agitate such a right would not fall within the provisions of S. 63(c) read with S. 108 of the Act, and, therefore, the civil Court had jurisdiction to entertain the suit. In that view, the appeal was allowed and the suit was remitted to the trial Court for disposal in accordance with law. It is the correctness of this remit order that is questioned by the appellant in this civil miscellaneous appeal.
4. Mr. P. S. Srisailam, learned counsel for the appellant, first contended that on the averments in the plaint it has not been established that the first respondent is under any legal obligation to discharge the duties in relation to the Adyabagha Goshti, for the non-performance of which he may be visited with any penalty and, therefore, there cannot be a right to any office as such asserted by the first respondent requiring to be adjudicated upon and as there is no civil right involved, the suit before the civil Court is not maintainable. Strong reliance in this connection was also placed by the learned counsel upon the decision of the Supreme Court reported in Sinha Ramanuja Jeer v. Rangaramanuja Jeer, . On the other hand, learned counsel for the first respondent submitted that the performance of duties relating to Adyabagha Goshti is in the nature of an office and since a right to that office is asserted on its being denied by the appellant and others it would give rise to an actionable claim by the first respondent against the appellant and others for establishment of that right. Attention in this connection was also drawn to the decision reported in Thiruvenkata Ramanuja v. Ven-katacharlu, AIR 1947 PC 53.
5. The objection regarding the jurisdiction of the civil Court in this case is two-fold. The first part of the objection relates to the nature of the right sought to be asserted by the first respondent in the course of the performance of the duties relating to Adyabhaga Goshti. It is seen from paragraph 3 of the plaint that the ancient and established custom and mamool which had obtained was that the family of the first respondent and their ancestors had been exercising the right to appoint persons for the purpose of constituting the Adyabaga Goshti for the recitation of Divya Prabandham before Sri Ranganathaswami whenever the deity is taken out in procession outside the Aryabatal Vasai. The right claimed by the first respondent is stated to be an exclusively hereditary right for the appointment of persons for participating in the Adyabaga Goshti. The plaint, however, is silent as to whether this particular right claimed by the first respondent herein is attached to any office in the temple or whether for the non-performance of the same, the first respondent or ethers could be visited with any punishment. It is very necessary that before a right asserted could he considered as a civil right, it must be attached to an office and far the non-performance of the duties and non-exercise of the rights pertaining to that office, the incumbent could be found fault with by the imposition of a punishment. It is relevant in this connection to refer to the decision of the Supreme Court reported in Sinha Ramanuja Jeer v. Rangaramanuja Jeer, , Subba Rao, J. as he then was, has summarised the relevant principles of law as under:--
"....(1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a civil Court (2) Rut a suit to establish one's right to an office in a temple and to honours and privileges attached to the said office as its remuneration or perquisites is maintainable in a civil Courts. (3) The essential condition 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 non-observance of which he may be visited with penalties. (4) So judged, there cannot be an independent office of theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad: the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order. (5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office;....."
Considered in the light of the principles laid down in the above decision, it is seen that the first respondent has not sought to establish his right to any office in the temple and to honours and privileges attached to the said office as remuneration or perquisites. There is also nothing to indicate that the first respondent is under any legal obligation to discharge the duties, for the non-performance of which he may be visited with penalties, in the absence of the fulfilment of the above said requirements, it follows that the first respondent cannot claim that he is agitating only a civil right before the Court, and therefore, his (sic) is maintainable. The decision in Thiruvenkata Ramanuja v. Venkatacharlu, AIR 1947 PC 53, relied on by the learned counsel for the first respondent does not in any manner assist him, for, that case did not hold that the duties pertaining to Adyabaga Goshti relate to an office or that there was any legal or compellable duty with reference to the performance thereof and for the non-performance of which, a penalty could be imposed. Apart from it, in view of the clear statement of the law in the decision of the Supreme Court, the decision in Thiruvenkata Ramanuja v. Venkatacharlu, ATR 1947 PC 53, relied on by the learned counsel for the first respondent does not assist him in any manner, consequently, it has to be held that the first respondent cannot be said to have come to the civil Court with a view to agitate a civil right.
6. Learned counsel for the appellant next contended that in this case, the first respondent has asserted that the established usage and custom of the institution was for the first respondent and his ancestors to appoint persons to participate in the Adyabaga Goshti, while Us existence as such has been disputed by the appellant and others and necessarily, therefore, the usage or practice in this regard has to be ascertained and that is committed to the exclusive jurisdiction of the Deputy Commissioner, Hindu Religious and Charitable Department, under S. 63(e) of the Act and in such matters, the jurisdiction of the civil Court is excluded under S. 108 of the Act. Learned counsel for the first respondent, on the other hand, submitted that the dispute was confined to the question whether the first respondent was vested with the right to appoint persons to participate in the Adyabaga Goshti or not and such a dispute would not fall within S. 63(e) of the Act. Reliance was also placed in this connection upon the decision reported in C. Moopan v. M. Moopan, (1966) 1 Mad LJ 361.
7. In paragraph 3 of the plaint, the first respondent has clearly stated that the ancient and established customs and mamool is for the first respondent and his ancestors to appoint competent persons for reciting Divya Probandam in the Adyabaga Goshti and it is further stated that the appellant and others are bound to respect it. In the written statement filed by the appellant, in paragraph 2, that claim so made by the first respondent has been refuted and it has been stated that the Adyabaga Goshti never functioned under the control of the members of the family of the first respondent or even the first respondent. This would clearly amount to a denial of the usage and custom asserted by the first respondent and disputed by the appellant herein and others. Necessarily, therefore, it has to be determined whether there was such a custom cr usage or practice in the institution in and by which the ancestors in the family of the first respondent or even the first respondent had appointed persons to participate in the Adyabaga Goshti in the purported exercise of their right to do so. That would be a matter falling exclusively within the jurisdiction of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, under the latter part of S. 63(c) of the Act, viz., "what the established usage of a religious institution is in regard to any other matter". Under S. 108 of the Act, no suit or other legal proceeding in respect of any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act. Having regard to the controversy arising in the suit regarding the custom and usage, that question has to be decided only by the Deputy Commissioner under Sec. 63 of the Act and before that controversy is determined, resort to Civil Court cannot be had by virtue of the bar enacted under S. 108 of the Act. The reliance placed upon the decision in C. Moo-pan v. M. Moopan, (1966) 1 Mad LJ 361, by the learned Counsel for the first respondent does not in any manner advance his case. In that case, there was no controversy about the office or the emoluments attached to the office, in relation to the services rendered in the exercise of the right to the office, but the dispute was confined to the question whether the office was vested in one group or the other. It was in this background of the controversy that it was held that the dispute fell within the jurisdiction of the Civil Court. Such is not the situation in this case. As noticed earlier, this decision cannot have any application whatever on the facts of this case. No other point was urged.
8. Consequently, the lower appellate Court was in error when it proceeded to hold that what was sought to be agitated by the first respondent in the suit was a civil right cognisable by a Civil Court under S. 9, C.P. Code, and that the suit is also not barred by the provisions of S. 63(e) read with S. 108 of the Act. The appeal is, therefore, allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court will stand restored. There will be no order as to costs.
9. Appeal allowed.