Madras High Court
Arulmighu Suyambulingaswamy ... vs Annamalai
2023/MHC/406
S.A.Nos.2057, 2058 & 2059 of 2002
and S.A.(MD) No.412 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved On Judgment Pronounced On
20.01.2023 02.02.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.Nos.2057, 2058 & 2059 of 2002
and
S.A.(MD) No.412 of 2004
and
C.M.P.(MD) Nos.1166, 1167 & 1168 of 2022
S.A.No.2057 of 2002:
Arulmighu Suyambulingaswamy Thirukoil,
Vuvari, Rep., by its Hereditary Trustee,
P.K.S.T. Radhakrishnan,
Keezh Vuvari, Rathapuram Taluk,
Thirunelveli District. .. Appellant/Appellant/
Plaintiff
-vs-
1.Annamalai
2.Chandran
3.Ponnaiya
4.Arumugam
5.Ganapathi (Died)
6.Thirunavukkarasu
7.Sundaresan
8.Nadaraja Gurukkal
1/36
https://www.mhc.tn.gov.in/judis
S.A.Nos.2057, 2058 & 2059 of 2002
and S.A.(MD) No.412 of 2004
9.Subbiah
10.Chandran
11.Kanakasababathi
12.Sundaramoorthy
13.Appar
14.Manickavasagam
15.Narayana Gurukkal
16.Rathinasababathi
17.Kannan
18.Janarthana Gurukkal
19.Subbaiyah Gurukkal
20.Rajan
21.Somasundaram
22.Muthumanickam
23.Periyasamy
24.Ramaraj Gurukkal
25.R.Subramanian
26.Namachivayam .. Respondents/
Respondents/ 1 to 26/
Defendants 1 to 26
Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 26.06.2002 made in A.S.No.221 of 2001 on
the file of the First Additional District Court, Tirunelveli confirming the
judgment and decree dated 12.07.2001 made in O.S.No.120 of 1997 on the
file of the First Additional Sub Court, Tirunelveli.
2/36
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S.A.Nos.2057, 2058 & 2059 of 2002
and S.A.(MD) No.412 of 2004
S.A.No.2058 of 2002:
Arulmighu Suyambulingaswamy Thirukovil,
Vuvari, Rep., by its Hereditary Trustee,
P.K.S.T. Radhakrishnan,
Keezh Vuvari, Rathapuram Taluk,
Thirunelveli District. .. Appellant/Appellant/
Defendant
-vs-
Vuvari Sri Suyambulingaswami Thirukovil,
Hereditary Archakas Association (Reg.No.1/90),
Vuvari,
Rep., by its President,
Pitchiah Gurukkal,
Keezh Vuvari,
Rathapuram Taluk,
Thirunelveli District. .. Respondent/Respondent/
Plaintiff
Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 26.06.2002 made in A.S.No.223 of 2001 on
the file of the First Additional District Court, Tirunelveli confirming the
judgment and decree dated 12.07.2001 made in O.S.No.184 of 1997 on the
file of the First Additional Sub Court, Tirunelveli.
S.A.No.2059 of 2002:
Arulmighu Suyambulingaswamy Thirukovil,
Vuvari, Rep., by its Hereditary Trustee,
P.K.S.T. Radhakrishnan,
3/36
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S.A.Nos.2057, 2058 & 2059 of 2002
and S.A.(MD) No.412 of 2004
Keezh Vuvari, Rathapuram Taluk,
Thirunelveli District. .. Appellant/Appellant/
Defendant
-vs-
Vuvari Sri Suyambulingaswami Thirukovil,
Hereditary Archakas Association (Reg.No.1/90),
Vuvari,
Rep., by its President,
Pitchiah Gurukkal,
Keezh Vuvari, Rathapuram Taluk,
Thirunelveli District. .. Respondent/Respondent/
Plaintiff
Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 26.06.2002 made in A.S.No.225 of 2001 on
the file of the First Additional District Court, Tirunelveli confirming the
judgment and decree dated 12.07.2001 made in O.S.No.182 of 1997 on the
file of the First Additional Sub Court, Tirunelveli.
S.A.(MD)No.412 of 2004:
Ovari Sree Suyambulingasamy Temple,
Through its Hereditary Trustee,
P.K.S.T.Radhakrishnan .. Appellant/Appellant/
Plaintiff
-vs-
Karthesan Kurukkal .. Respondent/Respondent/
Defendant
4/36
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S.A.Nos.2057, 2058 & 2059 of 2002
and S.A.(MD) No.412 of 2004
Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 31.07.2004 made in A.S.No.12 of 2004 on
the file of the Principal District Court, Tirunelveli preferred against the
judgment and decree dated 31.10.2003 made in O.S.No.642 of 1996 on the
file of the Principal District Munsif's Court, Valliyoor.
In all Cases:
For Appellant : Mr.V.Chandrasekar
In S.A.Nos.2057, 2058 and 2059 of 2022:
For Respondents : Mr.R.Thiagarajan
In S.A.(MD) No.412 of 2004:
For Respondent : Mr.M.Kannan
COMMON JUDGMENT
Arulmighu Suyambulingaswamy Kovil, represented by its Hereditary Trustee, is the appellant in these second appeals. These second appeals are arising out of either the suits filed by the temple against the Archakas or the suits filed by the Archakas against the temple. These second appeals were grouped together, as common substantial questions of law arise for consideration regarding hereditary priestship of priests engaged in poojas of the temple.
5/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 2.1. S.A.No.2057 of 2002 is arising out of a suit in O.S.No.120 of 1997 filed by the appellant/temple, represented by its Hereditary Trustee against 27 priests engaged in the temple. The appellant sought for a declaration that the defendants/respondents therein were not Archakas (Priests) of the temple and for injunction restraining them from interfering with the performance of pooja and related activities by the temple administration. The appellant also sought for injunction restraining the respondents therein from selling pooja related articles in the temple premises.
2.2. S.A.No.2058 of 2002 is arising out of a suit in O.S.No.184 of 1997 filed by the respondent/Priest Association of the appellant/temple viz., Vuvari Shri Suyambulingaswami Thirukovil Parambari Archakagal Sangam, represented by Pitchiah Gurukkal. The respondent/Association sought for injunction restraining the appellant/Hereditary Trustee from appointing any priests in the temple so as to affect the hereditary right of the members of the Association to do pooja in the appellant/temple. 6/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 2.3. S.A.No.2059 of 2002 is arising out of a suit in O.S.No.182 of 1997 filed by the respondent/Priest Association seeking injunction restraining the appellant/Hereditary Trustee from interfering with the hereditary right of the respondent/Association members to perform pooja in the appellant/temple.
2.4. S.A.(MD) No.412 of 2004 is arising out of a suit in O.S.No.642 of 1996 filed by the appellant/temple seeking injunction restraining the respondent therein from interfering with the affairs of the appellant/temple by entering and performing pooja.
2.5. The appellant filed the above said two suits mainly on the ground that he is the Hereditary Trustee of the appellant/temple and the respondents/defendants therein are either the erstwhile priests or their descendants, who are performing the poojas and archanas in the appellant/temple even prior to the coming into force of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (hereinafter referred to as “the HR & CE Act” for brevity). It was also claimed by the appellant that the respondents were not appointed as Archakas of the temple 7/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 and the respondents started claiming that they were hereditary priests of the temple and hence, the appellant was constrained to file the above said suits. The two suits filed by the appellant were resisted by the respondents/defendants therein by claiming themselves as hereditary priests of the temple performing poojas and other related activites. The Archakas Association filed the two suits for the above said reliefs mainly claiming themselves as hereditary priests of the appellant/temple. The suits filed by the priests Association were resisted by the appellant/temple by denying the alleged hereditary right claimed by them by relying on Section 55 of the HR & CE Act.
3.1. The suits in O.S.Nos.120, 182 and 184 of 1997, out of which S.A.Nos.2057, 2058 and 2059 of 2002 are arising, were tried together and the suit filed by the appellant/temple in O.S.No.120 of 1997 was dismissed and the findings of the trial Court were confirmed by the first appellate Court. The other two suits in O.S.No.182 of 1997 and 187 of 1997, filed by the Priest Association out of which S.A.Nos.2058 and 2059 of 2002 are arising, were decreed by the trial Court and the findings were confirmed in first appeals.
8/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 3.2. The suit in O.S.No.642 of 1996, out of which S.A.(MD) No.412 of 2004 is arising, was tried separately and the suit filed by the appellant/temple was dismissed and the findings were confirmed in first appeal. Therefore, the appellant/temple, represented by its Hereditary Trustee, has filed all these four appeals.
4.1. In all these second appeals, common questions of law regarding the hereditary priestship are arising for consideration.
4.2. In S.A.Nos.2057, 2058 and 2059 of 2002, at the time of admission, the following substantial questions of law were formulated:
“a) Whether the Courts below erred in law in decreeing the suits in O.S.No.182 of 1997 and 184 of 1997 while such relief is barred under Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowment Act, 1959 as amended under Act 2/71?
b) Whether the Courts below erred in law in holding that the right of hereditaryship in the case of archakas would continue even after the Amendment Act 2 of 1971 merely because they were enjoying such right even prior to such 9/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 amendment especially when the Act does not provide for any such safeguard to those persons?
c) Whether the Courts below misconstrued and misconceived the position of law under Section 28(1) of the Tamil Nadu Hindu Religious and Charitable Endowment Act in between a religious function and a secular function?
d) Whether the Courts below erred in law in granting decree as prayed for by the respondents herein especially when such decree directly interferes with the administration of the temple which undisputed by him in the hands of the Appellants? and
e) Whether the Courts below erred in decreeing the suit in favour of the archakas and dismissing the suit against the appellant in total ignorance of law laid down by the Honourable Supreme Court in AIR 1972 SC 1586 and AIR 1996 SC 1765 and by this Court in 2000 (3) MLJ 211 and W.A.No.424 of 1999, dated 11.3.99?” 4.3. In S.A.(MD) No.412 of 2004, only notice was ordered on 06.12.2004 and the same was not admitted and hence, no substantial question of law was formulated. However, at the time of argument, the learned counsel appearing for the appellant advanced arguments based on the substantial question of law formulated in the other connected second appeals.10/36
https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 5.1. Mr.V.Chandrasekar, learned counsel for the appellant submitted that the hereditary priestship was discontinued in Tamil Nadu by introduction of amendment to Section 55 of the HR & CE Act. The learned counsel, by taking this Court to the amended Section 55 of the HR & CE Act, submitted that subsequent to the coming into force of Tamil Nadu Act 2 of 1971, the hereditary priestship right was abolished in State of Tamil Nadu and therefore, the respondents cannot claim any hereditary right in performing poojas in the appellant/temple.
5.2. The learned counsel, in support of his contention, relied on the following judgments:
(a) His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. Vs. State of Tamil Nadu reported in AIR 1972 SC 1586; and
(b) N.Kumaraswamy Gurukkal Vs. Commissioner, HR & CE and others reported in (2000) 3 M.L.J. 211.
5.3. In nutshell, it is the contention of the learned counsel for the appellant that the judgments passed by the Courts below are liable to be set 11/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 aside, as the Courts below overlooked the amended provisions of Section 55 of the HR & CE Act.
6.1. Mr.R.Thiagarajan, learned counsel for the respondents in S.A.Nos.2057, 2058 and 2059 of 2002 submitted that the individual respondents and members of the respondent/Association have been performing poojas in the appellant/temple for generations for over 400 years and hence, the appellant is not entitled to interfere with their right to perform poojas in the temple. The learned counsel submitted that the appellant in his pleadings admitted about the performance of poojas by the individual respondents by generations in the appellant/temple and hence, it is not open to the appellant to deny the individual respondents from performing poojas in the temple. The learned counsel further submitted that performance of poojas by the respondents for generations together has been established factually and hence, the respondents are entitled to continue the performance of pooja hereditarily and therefore, the decrees passed by the Courts below in favour of the respondents recognising their hereditary right are sustainable in law.
12/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 6.2. The learned counsel further submitted that though appointment to the office of priestship was abolished in State of Tamil Nadu, by Act 2 of 1972, the distinct usage and custom prevailing in any temple appointing priests from particular denomination cannot be done away with by the Hereditary Trustee by taking shelter under amended provisions of Section 55 of the HR & CE Act.
6.3. The learned counsel in support of his contention, relied on the decisions of the Hon'ble Apex Court in Seshammal and others Vs. State of Tamil Nadu reported in (1972) 2 SCC 11 and Adi Saiva Sivachariyargal Sangam and others Vs. Government of Tamil Nadu and another reported in (2016) 2 SCC 725.
6.4. In nutshell, it is the contention of the learned counsel for the respondents in S.A.Nos.2057, 2058 and 2059 of 2002 that the appellant/temple administration cannot interfere with the performance of poojas by the respondents in the suit temple, as their family acquired such hereditary right by performing poojas in the very same temple for generations together.
13/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 7.1. The learned counsel appearing for the respondent in S.A.(MD) No.412 of 2004 submitted that he adopts the arguments of the learned counsel for the respondents in S.A.Nos.2057, 2058 and 2059 of 2002. Supplementing his arguments, the learned counsel submitted that in view of saving clause under Rule 33 of the Tamil Nadu Hindu Religious Institutions (Officers and Servants) Service Rules, 1964 framed under the HR & CE Act, the respondent is entitled to continue the performance of poojas notwithstanding the amendment to Section 55 of the Principal Act.
8. Heard the arguments of the learned counsel for the appellant and that of the learned counsel for the respondents in respective second appeals. Perused the typed set of papers and other relevant records.
9.1. The core question that has to be decided in these second appeals is with regard to the hereditary right of individual respondents to perform poojas in the appellant/temple without being any interference by the Hereditary Trustee of the appellant/temple. The hereditary right to perform poojas in the temples in State of Tamil Nadu was recognised by unamended 14/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 provisions of Section 55 of the HR & CE Act, which originally stood as follows:
“Appointment of office-holders and servants in religious institutions.– (1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee in cases where the office or service is not hereditary.
(2) In cases where the office or service is hereditary, the person next in the line of succession shall be entitled to succeed.
(3) Where, however, there is a dispute respecting the right of succession, or where such vacancy cannot be filled up immediately, or where the person entitled to succeed is a minor without a guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as guardian, or – Where the hereditary office-holder or servant, is on account of incapacity, illness or otherwise unable to perform the functions of the office or perform the service, or is suspended from his office under sub-section (1) of Section 56, the trustee may appoint a fit person to perform the functions of the office or perform the service, until the disability of the office-holder or servant ceases or another person succeeds to the office or service, as the case may be.
Explanation.– In making any appointment under this sub-section, the trustee shall have due regard to the 15/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 claims of members of the family, if any, entitled to the succession.
(4) Any person aggrieved by an order of the trustee under sub-section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Deputy Commissioner.” 9.2. Section 55 of the HR & CE Act and other provisions were amended by Tamil Nadu Act 2 of 1971 which came into force on 8th January, 1971. The amended provision of Section 55 reads as follows:
“Appointment of office-holders and servants in religious institutions. – (1) Vacancies, whether permanent or temporary, among the office-holders or servants of a religious institution shall be filled up by the trustee [in all cases].
Explanation.– The expression “office-holders or servants” shall include archakas and pujaries.
(2) No person shall be entitled to appointment to any vacancy referred to in sub-section (1) merely on the ground that he is next in the line of succession to the last holder of the office.
[(3) omitted] (4) Any person aggrieved by an order of the trustee under [sub-section (1)] may, within one month from the date of the receipt of the order by him, appeal against the order to [the joint Commissioner or the Deputy Commissioner].” 16/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004
10. A close scrutiny of unamended Section 55 prior to 1971 and amended Section 55 which came into force from 8th January, 1971 would make it clear that prior to the amendment of Section 55, the trustee of the temple had no option but to appoint the first person in the line of succession whenever vacancy occurs in the office governed by Hereditary Rule. By virtue of introduction of new sub-Section (2) to Section 55, whenever vacancy occurs in the office-holders or servants of religious institution, it shall be filled up by the trustee in all cases and no person shall be entitled to get appointment merely because he is the next person in the line of succession to the last holder of the office. Therefore, the principle of appointing a person to office or service based on Hereditary Rule had been abolished by amended Section 55. Therefore, subject to other restrictions in the Act, the trustee is entitled to appoint any qualified person to the office, which fall vacant without bound by the rule of appointing next person in the line of succession. The amendment introduced to Section 55 only expands the option available before the Hereditary Trustee for filling up any future vacancy in a post which had been hitherto governed by Hereditary Rule. But by no stretch of imagination, it can be said that the amended Section enables the Hereditary Trustee to remove any person who is already 17/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 discharging duties in the post governed by Hereditary Rule. In other words, merely because a person discharging his functions in a post which was earlier governed by Hereditary Rule, was appointed or allowed to discharge those functions by following Hereditary Rule, his services cannot be discontinued. Those persons who are already discharging functions are entitled to continue their services so long as it is allowed by law and the relevant Service Rules. However, subject to disciplinary control by the trustee.
11.1. The amendment introduced to Section 55 was challenged before the Hon'ble Apex Court by way of writ petitions filed under Article 32 of the Constitution of India in His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. Vs. State of Tamil Nadu reported in AIR 1972 SC 1586, which is equivalent to (1972) 2 SCC 11. These two case laws are one and the same judgment delivered by a Hon'ble Constitutional Bench of the Apex Court on 14.03.1972 in Writ Petition Nos.13, 14, 70, 83, 437, 438, 439, 440, 441, 442, 443 and 444 of 1971. However, cause title given in the journals differ. The amendment was mainly challenged on the ground that Hereditary Rule of appointment of priestship was an essential 18/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 and integral part of religion and appointment of priests by the trustee is nothing but a religious function. Therefore, it is not open to the legislature to tinker with the rule of hereditary succession in the appointment of priestship. It was argued that appointment of a person to religious office in accordance with the hereditary principle is itself a religious usage and amounts to a vital religious practice and hence, falls within Articles 25 and 26 of the Constitution of India. The Constitution Bench of the Hon'ble Supreme Court of India while answering the question whether appointment of a priest is a secular function or a religious practice, came to the conclusion that appointment of a priest is a secular act and merely because in some temples, the Hereditary Rule was followed in making the appointment would not make it as a religious practice. Therefore, the amendment made to Section 55 to do away with the practice of following Hereditary Rule in making appointments to various posts in temple including that of priests was upheld by the Hon'ble Apex Court. The amending Act was upheld by the Hon'ble Apex Court mainly on the ground that power of appointment available to the trustee to fill up vacancies that arise in various posts including the post of priest is a secular activity and merely because priests appointed so performed certain religious function, it 19/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 cannot be said that the very appointment of priest would amount to religious practice. However, it was further held in the judgment that if there is an established usage in any particular religious institution that the Archaka or pujari of the temple must be from a particular denomination, the trustee shall bound by the same. The said conclusion was arrived at based on Section 28(1) of the HR & CE Act, which reads as follows:
“28. Care required of trustee and his powers.– (1) Subject to the provisions of the [Tamil Nadu] Temple Entry Authorisation Act, 1947 ([Tamil Nadu]Act V of 1947), the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties if they were his own.
11.2. In fact, this position was conceded by the State of Tamil Nadu at the time of argument and the same was referred to in paragraph 16 of the judgment. The Hon'ble Apex Court upheld the validity of amendment introduced to Section 55 and concluded that trustees are at liberty to make appointments to the various posts in the temples including the post of priest 20/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 ignoring the Hereditary Rule. The relevant observation of the Hon'ble Apex Court is as follows:
“19. It is true that a priest or an Archaka when appointed has to perform some religious functions but the question is whether the appointment of a priest is by itself a secular function or a religious practice. Mr Palkhivala gave the illustration of the spiritual head of a math belonging to a denomination of a Hindu sect like the Shankaracharya and expressed horror at the idea that such a spiritual head could be chosen by a method recommended by the State though in conflict with the usage and the traditions of the particular institution. Where, for example, a successor of a Mathadhipati is chosen by the Mathadhipati by giving him mantra-deeksha or where the Mathadhipati is chosen by his immediate disciples, it would be, he contended, extraordinary for the State to interfere and direct that some other mode of appointment should be followed on the ground of social reform. Indeed this may strike one as an intrusion in the matter of religion. But we are afraid such an illustration is inapt when we are considering the appointment of an Archaka of a temple. The Archaka has never been regarded as a spiritual head of any institution. He may be an accomplished person, well versed in the Agamas and rituals necessary to be performed in a temple but he does not have the status of a spiritual head. Then again the assumption made that the Archaka may be chosen in a variety of ways is not correct. The Dharam-karta or the Shebait makes the appointment and 21/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 the Archaka is a servant of the temple. It has been held in K. Seshadri Aiyangar v. Ranga Bhattar [ILR 35 Mad 631] that even the position of the hereditary Archaka of a temple is that of a servant subject to the disciplinary power of the trustee. The trustee can enquire into the conduct of such a servant and dismiss him for misconduct. As a servant he is subject to the discipline and control of the trustee as recognised by the unamended Section 56 of the principal Act which provides “all office-holders and servants attached to a religious institution or in receipt of any emolument or perquisite therefrom shall, whether the office or service is hereditary or not, be controlled by the trustee and the trustee may, after following the prescribed procedure, if any, fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause”. That being the position of an Archaka, the act of his appointment by the trustee is essentially secular. (emphasis supplied) He owes his appointment to a secular authority. Any lay founder of a temple may appoint the Archaka. The Shebaits and Managers of temples exercise essentially a secular function in choosing and appointing the Archaka. (emphasis supplied) That the son of an Archaka or the son's son has been continued in the office from generation to generation does not make any difference to the principle of appointment and no such hereditary Archaka can claim any right to the office. See Kali Krishan Ray v. Makhan Lal Mookerjee [ILR 50 Cal 233], 22/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 Nanabhai Narotamdas v. Trimbak Balwant Bhandare [(1878-80) Vol. 4, Unreported printed Judgments of the Bombay High Court, p. 169] and Maharanee Indurjeet Kooer v. Chundemun Misser [16 WR 99] . Thus the appointment of an Archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular. (emphasis supplied) It would only mean that in making the appointment the trustee is limited in respect of the sources of recruitment. Instead of casting his net wide for selecting a proper candidate, he appoints the next heir of the last holder of the office. That after his appointment the Archaka performs worship is no ground for holding that the appointment is either a religious practice or a matter of religion. (emphasis supplied)
20. In view of sub-section (2) of Section 55, as it now stands amended, the choice of the trustee in the matter of appointment of an Archaka is no longer limited by the operation of the rule of next-in-line of succession in temples where the usage was to appoint the Archaka on the hereditary principle. The trustee is not bound to make the appointment on the sole ground that the candidate, is the next-in-line of succession to the last holder of office. To that extent, and to that extent alone, the trustee is released from the obligation imposed on him by Section 28 of the principal Act to administer the affairs in accordance with that part of the usage of a temple which enjoined hereditary appointments. The legislation in this 23/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 respect, as we have shown, does not interfere with any religious practice or matter of religion and, therefore, is not invalid.” 11.3. Therefore, as per the law laid down by the Hon'ble Apex Court in the judgment cited supra, from the coming into force of amendment viz., 08.01.1971, while making appointment to the post hitherto governed by Hereditary Rule, the trustees need not follow the next person in line of succession rule and appoint any qualified person as per the Service Rules framed under the HR & CE Act. However, still the power of the trustee is qualified to some extent by operation of Section 28 of the HR & CE Act.
However, in temples where Agamas governing the temple insist appointment of priest from any denomination, the said practice shall be followed. The said position was explained by the Hon'ble Apex Court in Adi Saiva Sivachariyargal Sangam and others Vs. Government of Tamil Nadu and another reported in (2016) 2 SCC 725. The relevant observation of the Hon'ble Apex Court in this regard is as follows:
“48. Seshammal [Seshammal v. State of T.N., (1972) 2 SCC 11] is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular 24/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 denomination of worshippers or believers have an exclusive right to be appointed as Archakas to perform the poojas.
Much less, has the judgment taken note of the particular class or caste to which the Archakas of a temple must belong as prescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies. Surely, if the Agamas in question do not proscribe any group of citizens from being appointed as Archakas on the basis of caste or class the sanctity of Article 17 or any other provision of Part III of the Constitution or even the Protection of Civil Rights Act, 1955 will not be violated. What has been said in Seshammal [Seshammal v. State of T.N., (1972) 2 SCC 11] (supra) is that if any prescription with regard to appointment of Archakas is made by the Agamas, Section 28 of the Tamil Nadu Act mandates the trustee to conduct the temple affairs in accordance with such custom or usage. The requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly take its own course. The constitutional legitimacy, naturally, must supersede all religious beliefs or practices.” 25/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 11.4. Therefore, it is clear that while making appointment to various posts in the temple including that of the priests, the trustee of the temple is free to appoint any qualified person as per the rules and he is not bound by the rule of first person in the line of succession (Hereditary Rule). However, while exercising that power, the trustee must have in his mind the obligation imposed on him under Section 28(1) of the HR & CE Act, subject to constitutional conformity. In the light of the above stated legal position, let us approach the present case on hand.
12. In the case on hand, in O.S.No.120 of 1997, out of which S.A.No.2057 of 2000 arises, the appellant/plaintiff seeks a declaration that the defendants are not the Archakas of the appellant/temple and also for permanent injunction restraining the respondents therein/defendants from interfering with the performance of poojas and other related activities by the temple administration. He also seeks permanent injunction restraining the respondents from selling any pooja articles in the premises of the appellant/temple. In the plaint, the appellant himself clearly admitted that 27 respondents shown as defendants were performing the poojas in the temple. It was also admitted that either the individual respondents or their 26/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 predecessors performed poojas at the time of coming into force of the main HR & CE Act viz., Act 22 of 1959. Therefore, it is no doubt clear that the defendants/respondents in S.A.No.2057 of 2002 functioned as priests in the appellant/temple at the time of the filing of the suit. Section 55 only enables the trustee to appoint any qualified persons subject to Service Rules without following Hereditary Rule, whenever a vacancy arises in any post in the temple including that of the priests. It does not give any right to trustee to remove the existing priest or interfere with the right to perform poojas. Therefore, the declaration sought for by the appellant cannot be granted in the light of his own admission in the pleadings as well as his oral evidence before the Courts below. The respondents in S.A.No.2057 of 2002 are entitled to continue as priests till they are qualified to perform the duties of priests as per the Service Rules framed under the HR & CE Act subject to the disciplinary control of hereditary trustee. In Seshammal's case cited supra, the Hon'ble Apex Court categorically held that priests are subject to the disciplinary control of the trustee and hence, in case of any omissions in performance of duties by the respondents, it is always open to the Hereditary Trustee of the appellant/temple to take appropriate action in accordance with law.
27/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 13.1. It was stated by the learned counsel for the appellant that disciplinary action had been taken against some of the respondents and they have been removed from service and that order was challenged in a revision before the Commissioner, HR & CE and the same is pending. It is clarified that the respondents in S.A.No.2057 of 2002 are subject to the disciplinary control of the appellant/Hereditary Trustee and he can continue the disciplinary action in accordance with law. However, the declaration and injunction prayed for in the suit cannot be granted. Hence, S.A.No.2057 of 2002 is dismissed with the above clarification.
13.2. In S.A.No.2058 of 2002, the Priest Association sought for an injunction restraining the Hereditary Trustee from appointing any Archakas to the suit temple so as to affect their hereditary right of performing pooja in the temple. As I discussed earlier, hereditary right of performing pooja in the temple was discontinued by Tamil Nadu Act 2 of 1971 from 08.01.1971. Therefore, the injunction sought for by the Priest Association restraining the Hereditary Trustee from making appointment to the post of priests in the temple cannot be granted in a blanket manner as prayed for in the suit. 28/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 When the Hereditary Rule governing the appointment was abolished, the respondent/Association is not entitled to maintain such a prayer. Of Course, the individual respondents in S.A.No.2057 of 2002 are entitled to continue their service as priests as indicated above, but however it is not open to the Association of temple priests to maintain a prayer injuncting the Hereditary Trustee from making any appointment to the post of priests in the temple. Under Section 55 of the HR & CE Act, the trustee is the authority to make appointment to all posts in the temple including that of the priest. Whenever there is a vacancy in the post of priest, as per the schedule of establishment, it is open to the trustee to make appointments by following the relevant rules. The decree for injunction granted by the Courts below restraining the trustee from making appointment to the post of priest so as to affect the hereditary right of performing pooja in the temple is inherently unsustainable, after coming into force of Tamil Nadu Act, 2 of 1971. Therefore, the decree dated 12.07.2001 made in O.S.No.184 of 1997 on the file of the First Additional Sub Judge, Tirunelveli, as confirmed by the judgment and decree in A.S.No.223 of 2001 is liable to be set aside. Accordingly, S.A.No.2058 of 2002 is allowed by setting aside the judgments and decrees passed by both the Courts below. 29/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 13.3. S.A.No.2059 of 2002 is arising out of the suit filed by the Priest Association in O.S.No.182 of 1997, wherein it sought for an injunction restraining the Hereditary Trustee from interfering with the hereditary right of performing poojas in the appellant/temple. Here again, the respondent/plaintiff is not entitled to maintain an injunction restraining the trustee from interfering with the alleged hereditary right of performing poojas. As discussed earlier, the hereditary right of performing poojas in temple has been discontinued by Tamil Nadu Act, 2 of 1971. Therefore, there cannot be an injunction restraining the appellant/hereditary trustee from interfering with the alleged hereditary right of members of respondent/Association. It is made clear that the individual respondents in S.A.No.2057 of 2002 are entitled to continue performance of poojas as indicated above subject to the disciplinary control by the Hereditary Trustee. However, there cannot be an injunction restraining the trustee from interfering with their alleged hereditary right of performing pooja. Therefore, the prayer sought for in the suit filed by the respondent/Association is inherently unsustainable in view of Act 2 of 1971. Accordingly, they are not entitled to decree for injunction as prayed 30/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 for. Hence, S.A.No.2059 of 2002 is allowed by setting aside the judgments and decrees passed in favour of the respondent/Association subject to the clarifications as indicated above.
13.4. S.A.(MD) No.412 of 2004 is arising out of O.S.No.642 of 1996 filed by the appellant/temple restraining one Karthesan Gurukkal/respondent therein from interfering with the affairs of the appellant/temple by entering and doing poojas. It was averred by the appellant in the plaint that the said Karthesan was appointed by him on his application for the post of priestship. The order was passed on 23.03.1973 subsequent to the coming into force of new Section 55. After some time, he resigned from the post and therefore, he is not entitled to enter the temple and perform poojas. The suit was resisted by the respondent therein mainly on the ground that even before the said appointment, he was performing poojas in the temple by virtue of his hereditary right. Later on, the appellant appointed him as an Archaka by giving more responsibilities. Since he was not interested in continuing the more responsibilities imposed on him by the said order of appointment, he resigned the said post. However, he is entitled to continue as an ordinary Archaka as before. The Courts below has 31/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 given a factual finding based on the evidence of D.W.3, a worshipper of the temple that the respondent in S.A.(MD) No.412 of 2004 had been performing poojas in the temple for quite a long time. He deposed that even his father Chellaiah Gurukkal also performed pooja in the temple. The factual finding rendered by the Courts below that the respondent had been performing pooja in the temple even prior to 1971 is based on evidence available on record and it is not based on no evidence or misreading of evidence available on record. Therefore, the injunction prayed for by the appellant against the respondent cannot be granted, as he is entitled to continue performance of poojas as he had been doing even prior to 1971. It is made clear that the respondent in S.A.(MD) No.412 of 2004 is entitled to perform poojas so long as he is entitled to do the same as per the relevant Service Rules subject to the disciplinary control of the hereditary trustee. With these clarifications, S.A.(MD) No.412 of 2004 is dismissed by confirming the judgments and decrees passed by the Courts below.
14.1. Pending S.A.No.2057 of 2002, respondents 6, 7 and 8 had passed away and their sons viz., the petitioners in C.M.P.(MD) Nos.1166, 1167 and 1168 of 2022 filed applications to bring them on record as legal 32/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 representatives of deceased respondents 6, 7 and 8 respectively. The said applications were mainly resisted by the appellant on the ground that when respondents 6, 7 and 8 are dead, there is a vacancy in the office of priestship occupied by them and it has to be filled up in accordance with the amended Section 55 of the HR & CE Act and the trustee is not bound to make appointment following Hereditary Rule. Therefore, the sons of respective deceased respondents are not entitled to come on record, as right to sue does not survive to them.
14.2. There is a force in the contention of the learned counsel for the appellant opposing the petitions to bring on record the legal representatives. The dispute in the second appeal is revolving around the hereditary right of priestship. In view of the discussions made earlier, the hereditary right of priestship is no manner recognised and the trustee of the temple is not bound to follow the Hereditary Rule after coming into force of Act 2 of 1971. Therefore, the right to defend the second appeal, which was available to the deceased respondents 6, 7 and 8 does not survive and the same is recorded. Therefore, the petitioners in C.M.P.(MD) Nos.1166, 1167 and 1168 of 2022, the sons of deceased respondents, are not entitled to come on 33/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 record as legal representatives of the deceased. Accordingly, C.M.P.(MD) Nos.1166, 1167 and 1168 of 2022 are dismissed.
15. In nutshell,
(i) S.A.No.2057 of 2002 is dismissed with the above clarification that the respondents therein are entitled to continue as priests till they are qualified to perform the duties of priests as per the Service Rules framed under the HR & CE Act subject to the disciplinary control of hereditary trustee. However, the declaration and injunction prayed for in the suit cannot be granted;
(ii) S.A.No.2058 of 2002 is allowed by setting aside the judgments and decrees passed by both the Courts below;
(iii) S.A.No.2059 of 2002 is allowed by setting aside the judgments and decrees passed in favour of the respondent/Association subject to the clarification that the individual respondents in S.A.No.2057 of 2002 are entitled to continue performance of poojas as indicated above subject to the disciplinary control by the hereditary trustee. However, there cannot be an injunction restraining the trustee from interfering with their alleged hereditary right of performing pooja;
34/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004
(iv) S.A.(MD) No.412 of 2004 is dismissed by confirming the judgments and decrees passed by the Courts below by clarifying that the respondent in S.A.(MD) No.412 of 2004 is entitled to perform poojas so long, as he is entitled to do the same as per the relevant Service Rules subject to the disciplinary control of the hereditary trustee; and
(v) in the facts and circumstances of the case, there shall be no order as to costs.
02.02.2023 NCC : Yes Index: Yes abr To
1.The First Additional District Judge, Tirunelveli.
2.The Principal District Judge, Tirunelveli.
3.The First Additional Sub Judge, Tirunelveli.
4.The Principal District Munsif, Valliyoor.
5.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
35/36 https://www.mhc.tn.gov.in/judis S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 S.SOUNTHAR, J.
abr Pre-delivery Common Judgment made in S.A.Nos.2057, 2058 & 2059 of 2002 and S.A.(MD) No.412 of 2004 and C.M.P.(MD) Nos.1166, 1167 and 1168 of 2022 02.02.2023 36/36 https://www.mhc.tn.gov.in/judis