Kerala High Court
Vasudevan Bhattathirippad @ Biswas K.N vs Mallapally Thirumalida Mahadeva ... on 20 June, 2013
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 24TH DAY OF JUNE 2014/3RD ASHADHA, 1936
RSA.No. 12 of 2014 ()
----------------------
AS. NO.23/2007 OF SUB COURT, THIRUVALLA
OS. NO.740/2001 OF MUNSIFF COURT, THIRUVALLA.
......
APPELLANT/APPELLANT/PLAINTIFF:
------------------------------------------------------
VASUDEVAN BHATTATHIRIPPAD @ BISWAS K.N.,
AGED 38 YEARS, S/O.NARAYANA BHATTATHIRI,
RESIDING AT THARAYIL KUZHIKKATTU ILLAM,
THUKALASSERY MURI, THIRUVALLA VILLAGE,
THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.P.HARIDAS,
SMT.S.SIKKY RAVISHANKAR.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
----------------------------------------------------------------------
1. MALLAPALLY THIRUMALIDA MAHADEVA TEMPLE,
MALLAPALLY, REPRESENTED BY ITS PRESENT ADMINISTRATORS,
MALLAPALLYTHIRUMALIDA HINDAVA SEVASANGHAM,
NO.42/63, REPRESENTED BY ITS PRESIDENT,
UNNIKRISHNAN, AGED 40 YEARS,
RESIDING AT NADUVILEMURIYIL HOUSE, PARIYARAM,
MALLAPALLY, MALLAPALLY VILLAGE, MALLAPALLY TALUK,
PATHANAMTHITTA DISTRICT, PIN- 689584.
2. MALLAPALLY THIRUMALIDA MAHADEVA TEMPLE,
MALLAPALLY, REPRESENTED BY K.S.S. KURUP,
AGED 54 YEARS, RESIDING AT KIZHAVARA HOUSE,
MALLAPALLYMURI, MALLAPALLY VILLAGE,
(SECRETARY, MALLAPALLY THIRUMALIDA HINDAVA
SEVASANGHAM, MALLAPALLY), PIN- 689 584.
3. AKKEERAMAN KALIDASAN BHATTATHIRIPPAD,
S/O.LATE AKKEERAMAN BHATTATHIRI, AGED 50 YEARS,
RESIDING AT THARAYIL KUZHIKKATTU ILLOM,
THUKALASSERY MURI, THIRUVALLA VILLAGE,
THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN- 689 101.
4. CHONOOR EASWARAN NAMBOOTHIRI @
CHUMANNOOR EASWARAN NAMBOOTHIRI,
AGED 55 YEARS, RESIDING AT CHONOOR ILLAM,
AZHIYIDATHUCHIRA P.O., THIRUVALLA- 689 119.
RSA.No. 12 of 2014
5. MALLAPALLY THIRUMALIDA MAHADEVA TEMPLE,
REPRESENTED BY ITS PRESENT PRESIDENT
GOPALAKRISHNA PILLAI, AGED 55 YEARS,
JAYANATHI NIVAS, MALLAPALLY WEST P.O.,PIN-689 584.
6. MALLAPALLY THIRUMALIDA MAHADEVA TEMPLE,
REPRESENTED BY ITS PRESENT SECRETARY,
CHANDRASEKHARAN PILLAI, AGED 55 YEARS,
THALAPPALLY WEST P.O., PIN-689 584.
R1, R2 & R4 TO R6 BY ADV. SRI.K.LAKSHMINARAYANAN.
R3 BY SRI.R.D.SHENOY, SENIOR ADVOCATE.
ADVS. SRI.S.VINOD BHAT,
SRI.LEGITH T.KOTTAKKAL.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 02-06-2014, THE COURT ON 24-06-2014 DELIVERED THE
FOLLOWING:
rs.
RSA.No. 12 of 2014
APPENDIX
PETITIONER'S ANNEXURES:-
ANNEXURE 1 CERTIFIED COPY OF THE JUDGMENT IN A.S. NO.23/2007
DATED 20/06/2013 OF SUB COURT, THIRUVALLA.
ANNEXURE 2 CERTIFIED COPY OF THE DECREE IN A.S. NO.23/2007
DATED 20/06/2013 OF SUB COURT, THIRUVALLA.
ANNEXURE 3 CERTIFIED COPY OF THE JUDGMENT IN O.S. NO.740/2001
OF MUNSIFF COURT, THIRUVALLA DATED 12/02/2007.
ANNEXURE 4 CERTIFIED COPY OF THE DECREE IN O.S. NO.740/2001
OF MUNSIFF COURT, THIRUVALLA DATED 12/02/2007.
RESPONDENT'S ANNEXURES:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - -
R.S.A. No. 12 of 2014
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 24th day of June, 2014.
JUDGMENT
The issue involved in this appeal is regarding the Tantriship in Thirumalida Mahadeva Temple at Mallappally. The deity is believed to be Swayambhoo.
2. Earlier the area where the temple is now situate was a thick forest. The temple is believed to be more than 300 years old. In the thick forest, there was a mound and on the either side of the mound ran the Manimala river. An ascetic took up penance on the mound. The legend is that the extreme penance invoked Lord Siva's pleasure who appeared before the ascetic. Thereafter the ascetic began to worship Lord Siva. Time passed by.
3. Much later, a lady by name Mali went to the forest to collect grass. It so happened that her sickle fell on the Sivalinga and it began to bleed. Frightened Mali, the lady, R.S.A. 12/2014.
2informed the nearby Pathilapotti family. They performed poojas. The story goes that when nivedya was offered after poojas, as per the Tantric stipulations, it was refused by the deity. Then the gruel given to Mali along with coconut grates was offered by Mali which was accepted by the Almighty. There is considerable debate regarding how the place derived the name " ". Some authorities attribute it to Mali, the lady who was instrumental in locating the deity.
4. Admittedly the temple fell within Edappally Swaroopam. With the waning of princely rule the affairs of the temple fell into disarray and temple came to be neglected. As King's resource depleted, so also the affairs of the temple. The theory is that members of seven Karas formed what is now termed as Mallappally Thirumalida Hyndava Seva Sangam. The said Sangam is in administration and management of the temple.
R.S.A. 12/2014.
3
5. The controversy is with regard to the status of the Tantri of the temple. It is not in dispute that for quite sometime the third defendant of Tharayil Kuzhikkatt Illom was the Tantri. According to the plaintiff, who is the member of Tharayil Kuzhikkatt Illom, the Tantriship is a hereditary right and it had been with the family for a long time. For time immemorial, members of the Illom have been performing Tantric rights in the temple. The grievance is that the Seva Sangam of which some of the defendants are the office bearers have manipulated Ext.B1 communication issued by the third defendant characterizing it as a communication by the third defendant relinquishing the Tantriship of the temple and on that basis terminating the Tantriship. The plaint proceeded on the basis that apart from the fact that the third defendant is incompetent to take any such unilateral decision, it is also contended that rights have been conferred on the family and other members of the family have a right over the Tantriship R.S.A. 12/2014.
4of the temple. It is also contended that by no stretch of imagination Ext.B1 could spell out a relinquishment of Tantriship. That has been so characterized by the members of the Seva Sangam with absolute malafides and with ulterior motive. Labelling the acts of the Seva Sangam as illegal and improper, the suit was laid for declaration that the Tantriship of the temple concerned is a hereditary right vested with the family i.e., Tharayil Kuzhikkatt Illom and for other consequential reliefs.
6. The Seva Sangam, as well as the fourth defendant who is the current Tantri, contested the suit. The Sangam disputed that the right of Tantriship was conferred on Tharayil Kuzhikkatt Illom and it was a hereditary right. They go to the extent of saying that initially the temple had no Tantri till 1962 after which the father of D.W.2, Vasudevan Namboodiri functioned as the Tantri. When he informed about his inability to continue the duties of Tantri, in 1993 the third defendant R.S.A. 12/2014.
5was asked to perform Tantric rights in the temple. There was no conferment of Tantriship on the family. The temple recently faced difficulties in getting a permanent Santikaran. It used to engage persons sponsored by the third defendant who either played truant or were found to be unsuitable. Ultimately the Sangam chose a Santikaran which was not to the liking of the third defendant which resulted in issuance of Ext.B1 communication by the third defendant. By Ext.B1 the third defendant had made it explicitly clear that he was unwilling thereafter to take up any responsibility of any rites in the temple and he had also prayed that his communication may be placed before the General Body. It was so done. The General Body decided to do away with the services of Tantri who was unwilling to take up responsibilities and the third defendant was removed from the Tahtriship and the fourth defendant was made the Tantri. It was also contended that the Rudra Yajnjam which was to be conducted on 19.8.2001 had to be R.S.A. 12/2014.
6postponed due to the non-co-operation of the third defendant causing considerable financial burden apart from causing humiliation and agony to the members of the Sangam and the devotees. It was contended that there was voluntary giving up of Tantriship by the third defendant and the plaintiff is not entitled to any relief in the suit.
7. The written statement of the fourth defendant infact supports the written statement of defendants 1 and 2. It would indicate that there was no practice of conferring of Tantriship to a family and it was not a hereditary right.
8. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 12 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants had D.Ws.1 to 4 examined and Exts. B1 to B5 marked. Exts.X1 to X4(a) are third party exhibits.
R.S.A. 12/2014.
7
9. The trial court as well as the appellate court concentrated on the issue whether the tantriship was conferred on the family and whether they have hereditary right. Finding that the plaintiff had failed to establish the above fact, the suit was dismissed, which was confirmed in appeal.
10. The following substantial questions of law were raised in this Second Appeal for consideration:
"O. Whether tantric right is an inheritable property or not?
P. Whether tantric right in Kerala is hereditary according to the customs, practice and precedents followed in Kerala?
Q. When a person is holding tantric right in a particular temple whether there is presumption in favour of him that he is holding such office hereditary as an inheritable property right?
R. When a person who once was the owner of the temple as well as ruler of the area who also is the Karanavan of the erstwhile ruling family adduced evidence to the effect that a particular family is holding tantric right, is it R.S.A. 12/2014.8
a rebuttable presumption? And if it is rebuttable, burden is on whom?
S. Whether an owner of a temple can remove tantri of a temple?
T. Whether an owner of a temple can trarnsgress into the right of a tantri?
U. When a person is performing as tantri and claiming to be holding the same as a hereditary right, is it not for the person disputing to adduce evidence disproving the same?
V. When a right of tantrum is vested in a family, whether a member of the family can relinquish the same?"
11. Learned counsel appearing for the appellant very vehemently contended that the concept of Tantri has been lost sight of by the defendants and they declare that they have absolute powers to appoint and remove Tantris as and when they like and wish. From time immemorial the Tantriship is conferred on a family and not on an individual and it continues with the family unless the family relinquishes the same. The Tantri occupies a very exalted position and it R.S.A. 12/2014.
9is recognized by both devotees and administrative body of the temple. Though he may not be actually involved in the administration and management of the temple, he is considered to be the final authority regarding the rites and rituals of the temple. Learned counsel went on to point out that the contesting defendants as well as the courts below were under the misapprehension and were labouring under the misconception that unless it is proved that Tantriship is a hereditary right, the claim cannot be upheld. It would appear that, according to the learned counsel, Tantri is treated on par with any other employee of the temple and the contesting defendants assert that they have the right to remove the Tantri at any moment. The Santikaran of the temple, according to the learned counsel, and such other employees may be under the control and supervision of the Sangam, but not the Tantri. The Tantri prescribes the rites and rituals in the temple. He determines the Moolamantra of the deity. There may be R.S.A. 12/2014.
10exceptional circumstances when a Tantri may misconduct himself and consequences may follow. But it is unheard of, according to the learned counsel, that the Samithy or Sangam, an administrative body of the temple, simply terminating the Tantriship and appointing another person as Tantri of the temple. Asserting that a perusal of the literature on the subject would clearly show that Tantriship is conferred on a family, learned counsel went on to point out that to certain extent it could be said that at a given point of time the eldest member of the family alone can act as Tantri.
12. The learned counsel referring to Ext.B1 went on to point out that it only indicated the anguish and disappointment of the third defendant in appointing a Santikaran without his knowledge. Learned counsel went on to point out that this is natural because Santikaran has to perform the daily poojas and the responsibility of anything that happens in the temple falls on the Tantri. It is in this R.S.A. 12/2014.
11context that Ext.B1 will have to be construed. Ext.B1 only wanted to indicate that the Sangam which thought it unnecessary to consult or have the participation of the Tantri in selecting the Santikaran cannot hold him responsible for any untoward incident that may happen due to the conduct of the Santikaran. The statement that the third defendant was unwilling to take up any responsibility only meant that the third defendant cannot take responsibility for anything that may be done by the Santikaran and also may extend to saying that in future he may not be saddled with the responsibility of finding out Santikaran. It does not mean that he asked for being excused from the Tantriship. According to the learned counsel, Ext.B1 has been misconstrued and an interpretation to suit the convenience of the Sangam has been adopted. It is therefore contended that the decisions of the courts below cannot stand.
R.S.A. 12/2014.
12
13. Learned counsel appearing for the contesting respondents on the other hand contended that there is no basis for the submissions made by the learned counsel for the appellant. The plaintiff had miserably failed to establish that there was a hereditary right of Tantriship with regard to the temple in question and it has come out in evidence, according to the learned counsel, that the third defendant has been acting as a Tantri of the temple only from 1992. From 1962 till 1992 the father of D.W.2 was acting at Tantri. Referring to Ext.B1, the learned counsel went on to point out that it is clear from a reading of the said communication that the third defendant, the then Tantri of the temple had expressed his unwillingness to take up any responsibility for anything that may happen in the temple and that is unbecoming of a Tantri. Further, it was pointed out that Rudra Yajnjam proposed to be conducted on 19.8.2001 had to be postponed due to the non-co-operation of the Tantri. This had caused considerable R.S.A. 12/2014.
13inconvenience and humiliation to the officers and invited public criticism. It was under this circumstance, the Sangam had decided to terminate the Tantriship of the third defendant and appointed the fourth defendant as Tantri. According to the learned counsel, there are no grounds made out to interfere with the judgments and decrees of the courts below.
14. Learned counsel appearing or the third defendant in the suit who supports the plaintiff contended that Ext.B1 will have to be read in the context in which it was made and it was improper to pick out words and give them meanings which they do not carry or was intended. By no stretch of imagination, according to the learned counsel, Ext.B1 could be treated as a relinquishment of Tantriship.
15. Even though in the plaint the reliefs sought for is with regard to the declaration of hereditary right of Tantriship etc., the real issue that arises for consideration is whether on a reading and interpretation of Ext.B1, one can R.S.A. 12/2014.
14come to the conclusion that there was relinquishment of Tantriship by the third defendant. If on a construction of the said document, one is to hold that there is no such relinquishment, then naturally the third defendant continues as Tantri in which case the question as to whether the Tantriship is hereditary or not need not be considered now, though it may incidentally arises for consideration.
16. Before going into the above aspects, it will be useful to understand the role of a Tantri and his obligations and duties. As already noticed, the question as to whether right is hereditary or not, may also arise for consideration. Further question that assumes importance is that the Sangam who is to administer the temple can treat the Tantri as an employee of the Sangam or do they have only administrative control over him. The question may also arise whether how far a Tantri can interfere with the administration of the temple.
R.S.A. 12/2014.
15
17. Tantric science is developed from Vedas. There is considerable debate regarding the origin of Tantriship. History of Kerala says that State was reclaimed by Lord Parasurama. For the welfare of the land he so reclaimed, it is stated that he did Pratista of 108 Siva temples and 108 Durga temples. He had the deities installed with the help of ascetics. It is further stated that Lord Parasumara initially had entrusted the Tantric rites to 12 families. Later those families branched out and the tribe of Tantries grew. The principle behind Tantric rites is that it is by Tantric means the Chaitanya of the deity is retained. The main act is performance of poojas. For that the Moorthy will have to be identified and then the appropriate Dhyana Mantra will have to be identified.
18. This is usually done by the Tantri. In T'antra Samuchayam' by Chennas Narayanan Namboodiripad, qualities of a Tantri is described as follows:
R.S.A. 12/2014.16
" ( : : ( :
f
( f
f .
: ( : - (
) ( . : -
( .
( : -
.
-
..
( : - (
(
. : -
; . : -
. -
. : -
.
."
R.S.A. 12/2014.
17
19. Considerable literature is available in this regard from ' ' published by
- Vol.13. It may be useful to refer to certain portions from the said book. At page 251, it is stated as follows:
"
' ', d7
" ', dD
'd5_O',
' '
dI
. ............
.
At page 252, it is stated as follows:
"D^dL_5 U_G_OHaXx_:nm DdL_ DIV5q_gO^?a"
)I^XH^V5q_gO^?a"e5b?_ )g`IqN^Oe5am\_H`V5q_fOe
3"5^x" f5^Ia :\_M_:nm X"d7Y_:nm )OVJaKa.e%Dm Nb\^G^xJ_W H_Km )CVJ_ Xb^G_Wmx^H", NC_Ibx5", R.S.A. 12/2014.18
%H^YD", U_Vai_ .K` H^\ae:d5BZ 5?Km H^X_5O_W f5^IaUKm dI^CH_WAb?_ fU{_O_g\Am <\7t IaWmI^fDB{_g\Am I5VKm fU{_O_\aU %HLN^O (VbxV5q_O_W \O_M_:nm U_d7YJ_g\Aa XNVM_AaK U_G_O^Cm R&U^YH"Q .KaIyOaKDm.e&G^xV5q_, Nb\dI5cD_, &F_5bVN", %HLX, IcE_U_,, IFmN" .K` WmA^G^xB{_W U_G_O^"UH" dID_Wm@_:n_x_AaK U_d7YJ_g\A^Cm h:DHc" I5xaKDm.eI`@Ib<O_W ( WmA^G^xBf{ <\7t IaWmIGbIF`IBf{fA^Ia Ib<_:nm (Vbxfa 'xaM_?N^A_ DOn^y^Aa5O^Ca f:OnaKDm.eNbVJ_Ib<O_W M7U^fH Xb^7D" f:Oqm %V8cI^Fc^D_5Z f5^?aJm (%D_E_ XDm5^x" gI^f\) XmH^H" f:On_:nm gW^AgV^I:^xBf{fA^Im Ib<_AaKa.e<\", 7t", IaWmI", GbI", F`I", H_gUFc" 'U H?J_ HcJ7`D^F_5f{fA^Im XgL^W_M_:nm NdLBf{fA^Ia IaWmI^>m<\_ H?J_ dLYmN^VIC" f:Oqm I^FD`VjfN?aJa D{_:nm U`Ia" DK_g\AaDfK h:DHcfJ )FbX_AaKa."
20. The qualities of a Tantri have already been referred to. There is controversy regarding his actual status, whether he is 'Guru' or 'Pita'. One school of thought holds the Tantri as a 'Guru', while the other School holds him as a 'Pita' R.S.A. 12/2014.
19of the idol. It is believed that he breaths life into the idol.
21. In cases of 'Swayambhoo' also most of the rites as in other cases will have to be conducted to have the 'Chaitanya' in the idol retained. It is the Tantri who after following certain rituals and rites does the installation of the idol. He determines the 'Dhyana' and 'Bhava' of the 'Moorthi'. He determines the 'Moolamantram' and he stipulates the rites and ceremonies to the followed in the temple. In fact in ' ' at page 254 it is observed as follows:
"DdL_5Z: gfdDB{_f\ Ib<^F_5VNBZ V^dXq^HaXxC"
H_Vm:O_:na H?Ja5gO^ H?J_Aa5gO^ f:OnaK &:^xcX.egfdD5^VN_5X, Iagx^Y_DX .K` gIxa5{_\a"
%y_OfM?aKa.edI^:`H5^\" NaDW DdL"
5^x^OmN^U5^VN^O_xaKa.ehFU`5N^O 5^xcBf{Aay_:nm
U_G_IyOaKD_HaU %G_5^x" DL_5{_\^Ca
H_f_IqN^O_GaUDm.eDdL_5Z gfdDJ_\HaWm@_AaK
dIdUaJ_5{^Cm 'DdL"" .K gIx_\y_OfM?aKDm."
22. Travancore Devaswom Manual, Vol.II devotes a chapter dealing with Tantries. In Chapter IV Clause (2), it is R.S.A. 12/2014.
20stated as follows:
"(2) Tantries are the chief priests of Devaswom.
The right to perform Tantrum in a temple is ordinarily hereditary or Karanma to a particular family. The family concerned may hold it either by virtue of a Royal 'Neet' conferring the right or because it has been enjoying the privilege for a long time. The Tantries may be classified as follows:
i. Malayala Brahmins;
ii. Ayyengars;
iii. Tamil Brahmiins; and iv. Nambians;
Of these, the first class follows the Malayala Tantram which prevails in the majority of temples and the last three adopt the Paradesa Tantram which is current only in a few temples in south kerala."
Clause (5) reads as follows:
"(5) Tantries can be either Karanma or Non Karanma. All special and important rights have to be fixed in consultation with Tantries. The general rule followed is that if there is no male member in the family to inherit the right to perform the duties of Tantri, another competent person can be appointed. Tantri R.S.A. 12/2014.21
should basically possess the required inner strength and knowledge of Tantric texts. The assumption is that a Tantri transfers all the divine energy earned by him by 'Saadhana' to the bimba at the time of Parathishta by the process called 'aavaahana'. A Tantri should be well conversant with the knowledge of six sasthras (sikha, Kalpam, Nirutham, Vyaakarnam, Jyothisham and Chhandus) with proper understanding of their use and significance."
Clause (6) reads as follows:
"(6) An ideal Tantri must posses certain qualities.
It is absolutely essential that a thantri should have a thorough knowledge about the rites and Sankalpa aof the deity of that temple. The Tantri should have got the "moolamanthra" of the Deity of the temple from the Tantri who installed the idol and also that he should have got instructions regarding the conduct of poojas etc. from him. The principal qualificiation of a Thantri is knowledge in the "Tantric rites" and he should be a pious person."
23. In ' ' by Kakkad Narayanan Namboodiri, 11th Edn. at page 27, it is observed as follows:
R.S.A. 12/2014.22
"%Da N^dDN\o 2xa DdL_ gFUfa &:^xcHa"
gfgdDVz^VAa" (*x^{z^VAa") gFVU^X_5ZAa" DdL_ gFUfHgM^f\ %M_UwcHaN^Cm.e&:^xc5a?a"LAxa" gFUHa"
DN_W 7axaV_WcM^UUa" 5b?_OafIK^Cm &7N"
X_i^L_AaKDm.egFUX DdL_fO )IH`D^:^xcfHgM^f\Oa"
DdL_ gFUfH, DfK X5\ &IJa5{_W H_Ka )ix_AaK IxN^v^U^Oa" 5xaDaKa.e%UV DN_\aU ( Lt"
%gMFcN^O_ Da?VKagI^xaKDa"
Da?VKagI^UaKDaN^5aKa.e( gL^GgJ^?a5b?_ DdL_
fIxaN^yaK If"egfgdDVz^VAa" gFVU^X_5ZAa"
gfN" DfK.e& U_GJ_W DdL_N^V &:x_A^JIf"
&IJaN^Cm K\fNKa" IygOI_O_x_AaKa."
24. The above literature leaves one in no doubt that normally and usually a Tantric right is conferred on a family or families. There are instances where a temple can have more than one Tantri from different families. It is significant to notice that when a question is asked as to who is the Tantri of the temple, the answer never is with reference to the name of the person but the name of the family is mentioned. For example, it is said that Tantri of the temple is Tharananelloor, Chennas, Thazhaman Kuttikkad Illom etc. Therefore, there is R.S.A. 12/2014.
23sufficient materials to show that normally the Tantriship belongs to a family.
25. Before going further, it will be useful to ascertain what is the scope of the powers of the so-called Sangam. It is not in dispute that the temple belongs to Edappally Swaroopam. At best the Sangam can claim right of management and to administer the temple in accordance with the custom, usage and practice.
26. P.W.5 is the present Karanavan of the Edappally Swaroopam. He asserts the rights of Swaroopam over the temple. He says that the affairs of Thirumalida Mahadeva temple has not been assigned to anybody. He says that Tantriship is conferred on a family. He would say that may be that the right of administration of the temple is conferred on a Committee or Samithy or Sangam as the case may be, but that act never carry with it the right to remove the Tantri. R.S.A. 12/2014.
24
27. P.W.6 is the official of the Devaswom Board. He in no less terms says that Tantriship is of the family and not that of an individual. According to him, usually another person is not called upon to perform as Tantri of the temple which has a Tantri of its own. He even goes to the extent of saying that it is a hereditary right. He sees no distinction as regards the status of a Tantri in a temple under the Devaswom Board and other temples.
28. P.W.11 is a member of Thazhaman family. He deposes that the person who performs Prathishta Karmam is the Tantri of the temple. Even in cases of Swayambhoo, it is necessary to conduct certain ceremonies for which a Tantri is chosen. That right enures to the family. He asserts that every Moorthy will have a Moolamantra which had to be passed to the Santikaran of the temple only by the Tantri of the temple.
29. It will be useful at this juncture to refer to the evidence of D.W.2, who is a defence witness. He is the son of R.S.A. 12/2014.
25Vasudevan Potti, who according to the defendants was the Tantri prior to the third defendant taking over Tantriship of the temple. D.W.2 deposed as follows:
"& gfdDJ_W .fa I_D^Um D^dL_5 5VN"
f:Oq_xaKa.eDdL_ &O_xaKa.e1964_65 UVW5^\" NaDW 1972 Ufx &O_xaKaeI_D^Um %U_f? DdL_.eI_K`?m :_\UVWB {_W %:m;faedI^O^G_5c" f5^Im >BZ I5x"
&f{U_Gm 5VNBZ f:On_:n_xaKa.e1992_Ufx I5x" &f{ U:na f:Oqa.eI_K`?m %U_?afJ dIX_Aa_gH^?m I5x"
&fxfOC_\a" U:nm 5VNBZ f:Oqaf5^U^X IyEa.e"
He further deposed as follows:
"XbO"Mb &O_ )U U_d7Y" .Lm NbVJ_ &Cm .Ka DdL_OaN^O_ &g\^:_:nm &Cm D`xaN^H_Aa5.eNbVJ_5WIHOaf? %UX^HU^Am DdL_ &Cm.eXbO"Mb &O_ )U U_d7YJ_Hm h:DHc" 5bG^X 5\VBZ f:On^yaIm.e36 DDbBZ &U^Y_:na" 5\VJ_W &A_ %M_gW5" f:Ona".e& 5\V" H?JaKD_Ha NaXIm Nb\NdL" /D^Cm .Ka DdL_ H_Vm:O_Aa"."
Further down he deposed as follows:
">BZAa 5a?a"L^U5^V" )I^O_xaK I\ gfdDJ_g\Oa"
D^dL_5U5^V" 2]_ED^Cm ."
R.S.A. 12/2014.
26Further down he deposed as follows:
"X^G^xC 7D_O_Weg5x{J_WeD^dL_5^U5^V"
I^xOxcN^O_ UxaKD^Cm.eD^dL_5^U5^V" I\ U_GJ_W h5N^ya5gO^ HWm?fM?a5gO^ f:On^V )Im."
and further down he says as follows:
"&:xcUxC"e:?Bm H?J_O^Cme3_^" dID_Am h5N^y_ODm."
30. A reading of the evidence of D.Ws.1, 3 and 4 leaves one in no doubt that they have no idea about the Tantric rights. Their main aim is to assert and to establish that the Sangam had absolute right and power to do whatever they like including removal of Tantri as if he is an employee of the Sangam. These witnesses would say that they have the right to remove the Tantri at their pleasure. It is interesting to note that D.Ws.1 and 3 in no less terms admit that most of what they have stated in the chief-examination is what is dictated to them by the Sangam. According to them, the temple had no Tantri prior to 1962.
R.S.A. 12/2014.
27
31. On the basis of the materials now available before court, it is difficult to accept the finding of the court below that there is no evidence to show that the Tantriship of the temple did not belong to the family of the third defendant. The question as to who should perform Tantram incidentally arises for consideration. So also the question whether it is hereditary. The question as to whether a person acting as Tantri at a given point of time can relinquish the Tantriship affecting the right of the family is also a question that need not be gone into in this suit.
32. The crucial question that arises for consideration is whether Ext.B1 communication amounts to a relinquishment of the Tantriship of the temple.
33. Before going further, a contention raised by the learned counsel for the contesting respondents has necessarily to be noticed. It was pointed out by him that going by the prayer in the plaint there is no attack on Ext.B1 and it is also R.S.A. 12/2014.
28pointed out that the suit has not been filed by the third defendant who issued Ext.B1 communication. As per the relief claimed in the plaint, what is sought for is a declaration of the vesting of the rights regarding Tantriship in the family and also for an injunction restraining defendants 1 and 2 from interfering with the exercise of Tantric right in the temple by the members of the family. Accordingly, it is contended by the defendants that it may not be possible to go into the question as to whether termination of Tantriship was proper and also entering into an interpretative exercise with reference to Ext.B1.
34. Though at the first blush the arguments may look attractive, on a deeper analysis it could be seen to carry little weight. The question as to whether the eldest member of the family alone can exercise Tantric right and whether the other members of the Illom during the life time of the eldest member can exercise Tantric right is not relevant in the R.S.A. 12/2014.
29present context. Those questions need to be answered only if this Court comes to the conclusion that Ext.B1 does amount to relinquishment of the Tantriship.
35. The third defendant in his written statement has narrated the circumstances under which he issued Ext.B1 document. It is true that he has not filed the suit assailing the interpretation given by the Sangam to Ext.B1. But his answer in that regard needs to be noticed. He says that he did not feel like agitating the question since he believed that if God wished, the Tantriship will come back to him.
36. The Trump card of the contesting defendants is Ext.B1 document. First of all, the context in which it was written needs to be noticed. There is some evidence to show that for a brief period the persons suggested or recommended or nominated by the third defendant were appointed as Santikaran of the temple. But those persons either went on long leave or did not have the necessary capacity and R.S.A. 12/2014.
30eligibility. The result was that Santikarans had to be changed frequently. The Sangam would claim that this created considerable difficulties in the conduct of poojas in the temple and therefore the Sangam decided to select a Santikaran and they did so.
37. What is significant is that neither the selection nor the appointment of Santikaran was brought to the notice of the third defendant. It so happened that the third defendant also recommended a person as Santikaran and when that person had gone to take charge he was told that Santikaran had already been appointed. It was in that context Ext.B1 was written.
38. The stand taken by the office bearers of the Sangam is that it is not necessary to consult the Tantri with regard to the appointment of Santikaran and it is not necessary that they should inform the Tantri as to who has been selected as Santikaran. The above arrogant attitude of R.S.A. 12/2014.
31the Sangam cannot be countenanced. The Santikaran has to do daily poojas and that has to be done in accordance with the rites and rituals prescribed by the Tantri. It is believed that any improper conduct of poojas affect the family of the Tantri. Further, the Moolamantram has to be passed on by the Tantri. It is therefore invariable that the Tantri should be satisfied that the person chosen as Santikaran is a competent person.
39. Now one may refer to the contents of Ext.B1. It is couched in the most polite language. The concluding portion reads as follows:
"gN\_W O^fD^xa 5^xcJ_Ha" )JxU^F_DbN^O_ :aND\ .?aAaU^X .H_Am D^WIxcN_\o.e5Ja 5N_x_O_W U^O_AaNg\o^."
It is the above portion which is construed by the Sangam as a relinquishment of the Tantriship by the third defendant. Ext.B2 is a communication issued by the Sangam addressed to the fourth defendant asking him to take over Tantriship of the R.S.A. 12/2014.
32temple. There is one significant aspect in Ext.B2. It is stated that in the light of the fact that the third defendant has declined to continue was Tantri of the temple, the General Body was constrained to find a suitable person. The statement that the third defendant had declined to be the Tantri is not something which is contained in Ext.B1 and it is a creation of the Sangam.
40. Learned counsel appearing for the contesting respondents pointed out that if as a matter of fact the third defendant had a case that Ext.B1 was not intended to express the relinquishment of Tantriship, he could have explained the matter to the Sangam. On the other hand, on being informed about the decision of the Sangam, he kept mum which fortified the decision of the Sangam that he was unwilling to act as Tantri.
41. The third defendant both in his written statement and when he was examined as a witness has R.S.A. 12/2014.
33narrated the circumstances under which Ext.B1 was issued. He has clearly stated that what was intended by him was that the appointment of Santikaran without reference to him and ignoring him is something painful and he is unwilling to take responsibility for that appointment.
42. On a plain reading of Ext.B1, it is difficult to come to the conclusion that there is an expression of relinquishment of Tantriship by the third defendant. Of course, it is mentioned that "gN\_W O^fD^xa 5^xcJ_Ha" )JxU^F_DbN^O_ :aND\ .?aAaU^X .H_Am D^WIxcN_\o."
This sentence that is taken out of context and given an interpretation that the third defendant was unwilling to act as Tantri. The above sentence spells out no such meaning. It only means that for the consequences that flow as a result of selection of a person as Santikaran without consulting him and R.S.A. 12/2014.
34without his participation, he will not be responsible. The above statement can carry only that meaning.
43. It is significant here to notice that D.W.1 says that one Chandrasekharan Nair had gone and met him on receipt of Ext.B1 and then the third defendant told Mr. Chandrasekharan Nair that he did not want to continue as a Tantri of the temple. This statement made by D.W.1 appears for the first time in evidence and there is no mention of this fact in the written statement of the contesting defendants. Further, the said Chandrasekharan Nair has not been examined.
44. An attempt was made to show that Rudra Yajnjam proposed to be conducted on 19.8.2001 had to be postponed due to the recalcitrant attitude adopted by the third defendant. Except for the statement so made by the officers of the Sangam, there is no evidence in that regard. Probably he might have expressed his reservations since most of the R.S.A. 12/2014.
35poojas will have to be done by the Santikaran. Whatever that be, as far as Rudra Yajnjam is concerned, there is absolute want of evidence to show that the said function had to be postponed solely due to the attitude displayed by the third defendant. Except the office bearers of the Sangam, none from the public has been examined to show that the claim made by the office bearers of the Sangam is justified. Here one may also notice that there is no suggestion to the third defendant when he was examined as P.W.12 that Mr. Chandrasekharan Nair had met him and that he told Mr. Chandrasekharan Nair that he was unwilling to continue as the Tantri of the temple.
45. The over enthusiasm of D.Ws.1, 3 and 4 to usurp absolute right over the temple including control over Tantri is evident from their depositions. However, their knowledge of Tantric rites and rituals betray them. These witnesses say that when the third defendant was made the R.S.A. 12/2014.
36Tantri, Acharya Varanam was not done. But that is contrary to the evidence given by D.W.2, their own witness. D.Ws.1, 3 and 4 assert that the Seva Sangam has absolute right to change the Tantri as and when they feel or as and when they wish. D.W.1 goes to the ridiculous extent of saying that when a new Santikaran takes charge, Moolamantram is to be passed on by the earlier Santikaran.
46. Cross-examination of D.W.3 states as follows:
"5N_x_ %"7" :dwgV6xX H^OV 5^{_F^X MGD_x_M^?_fa '\oJagI^O_xaKa.e%ggY"eIyEa .H_Aae'H_ D_xaN^\_? gfdDD_WedIO^X" &Cm .fK f5^Ia X^G_A_\o.eH_BZ gUfy &fxfOC_\a" gH^A_gA^ .Ka.e & U_Ux" 5N_x_O_W :V:n f:Oqa y_fM^VGm fI^DagO^7J_WeUOmAa5Oa" %ggYfJ N^x^X D`xaN^H_Aa5Oa" f:Oqa ."
As already noticed, there was no such suggestion to P.W.12 in that regard nor was Mr. Chandrasekharan Nair examined. The arrogance of D.W.3 is evident from the statement in cross-examination which reads as follows:
R.S.A. 12/2014.37
"DdL_Oaf? %"7`5^xN_\o^fD V^L_fO H_ON_:nDa %f\o %M_dI^O UcDc^XJ_Ha 5^xC" (Q) DdL_Am %M_dI^O UcDc^X" )I^O_xaKa, >BZAm '\o^O_xaKa.(A) He further states as follows:
"DdL_fO N^x^X 5]_Oa" .K gx6e>B{af?ebye-law- W )Im.e%Da Y^<x^A^"."
47. D.W.4, the President of the Sangam, in his evidence states as follows:
"?_ gfdDJ_fa DdL_gOOa" V^L_A^xgHOa" gfdD"
<`UHA^gxOa" H_ON_AaU^X D_xaN^\_? hYwU gXU^ X"8J_Ha" &OD_fa MxC XN_D_Aa" N^dD"
%G_5^xNaUD^Cm.e?_ gfdDJ_fa DdL_ XmE^H"
/fDC_\a"e2xa 5a?a"LJ_Hm 5WI_:naf5^?aAa5gO^ &ODm /fDC_\a" 2xa 5a?a"LJ_Hme I^xOxcN^O_ \M_Aa5gO^ f:Oq_G_\o.o."
In cross-examination he goes to the extent of saying that there is no practice in the temple in question of Tantri handing over Moolamanthram to the Santikaran. He even goes to the R.S.A. 12/2014.
38extent of saying that there is no Moolamanthram for the temple. As regards the Rudra Yajnjam, he says that the decision to conduct it on 19.8.2001 was taken with the consensus of the Tantri and that would be evident from the minutes of the meeting. But at the same time he says that he cannot produce the minutes of the meeting because that has been lost in floods. He would further say that a new minutes book has been opened and if the court directs, he is prepared to produce the same. His audacity is reflected in the statement that when a Santikaran is appointed, there is no practice of informing the Tantri nor is his consent needed.
48. It could thus be seen that the attempt of D.Ws.1, 2 and 4 is to somehow usurp to the Sangam the absolute right to manage all the affairs of the temple including the right to determine rituals and rites that is to be conducted in the temple. This is contrary to the practice of custom and the usage of any temple. It is well accepted, settled and R.S.A. 12/2014.
39recognized that rites, rituals and ceremonies in a temple are to be determined by the Tantri and not by anyone else.
49. Considerable discussion has been made by the courts below regarding the hereditary character claimed by the plaintiff. The courts have come to the conclusion that prior to the third defendant assuming Tantriship of the temple, there is no evidence to show that the family of the plaintiff or the third defendant has ever performed Tantra. The courts below have stated that there is absolutely no evidence in that regard.
50. Even though the plaintiff has produced Ext.A11, a written record by the predecessor-in-interest of the plaintiff, it would indicate that they had Tantriship of the temple. The courts below have conveniently overlooked the written statement of the fourth defendant. In the written statement of the fourth defendant, even though he asserts that the Sangam or the Ooralans, as the case may be, R.S.A. 12/2014.
40have the power to change the Tantri, he, in paragraph 7, makes mention of the fact that the family of the plaintiff as well as the third defendant has been Tantris for a long time.
51. It is quite disappointing to note that the fourth defendant too would go to the extent of asserting that the ownership of the temple is vested with the Sangam. He also says that family of the Tantri had nothing to do with the Tantrum. This statement, it must be noticed, is quite contrary to the literature on the subject.
52. From paragraph 10 of his written statement, it could be seen that in fact it was Tharananelloor family which had the Tantrum of the temple. As per the version given by the fourth defendant, they seldom used to come and they used to get Tantrum done through members of Kuzhikkatt Mana. As this state of affairs continued, it is stated that ultimately Tharamel Kuzhikkad was made the Tantri. He therefore points out that the Oooralans of the temple therefore had R.S.A. 12/2014.
41changed the Tantri and that shows that the Ooralans had such right.
53. It is difficult to accept the contention of the fourth defendant that the Sangam occupies the position of Ooralans. Further his written statement is a clear indication of the fact that the family of the plaintiff as well as the third defendant have been conferred with Tantriship in the distant past. His further statement regarding the Tantrum does not appear to be in consonance with the literature which have already been referred to. One has to understand his anxiety to retain the Tantriship.
54. It is not possible to accept the contention of defendants 1 and 2 that the Sangam has absolute right to change the Tantri as and when they wish. Tantri is not an employee of the Sangam. As earlier noticed, Tantri is considered either as 'Guru' or 'Pita' of the deity. Fact that Deity is Swayambhoo may be of little difference as could be R.S.A. 12/2014.
42discerned from the evidence given by P.Ws.11 and D.W.2. The evidence of the persons who are conversant with Tantrum, and the literature on the subject, leads to the conclusion that it is not to an individual the Tantriship is conferred, but to a family. Whether the eldest member of that family can relinquish Tantrum is a different question.
55. Turning to the core issue, it is extremely difficult to come to the conclusion that by virtue of Ext.B1 there is a relinquishment of the Tantriship by the third defendant. As to the assertion by the defendants that if the third defendant was aggrieved, he should have instituted the suit, the answer is given by the third defendant himself. He did not feel it necessary because his family believed that if the Almighty wishes, he would get back Tantriship. That must be the right attitude.
56. No documents or evidence is produced by the Sangam to show that by virtue of being a body in control over R.S.A. 12/2014.
43the administration and management of the temple, they got the power to change the Tantri also as they wish. As already noticed, they cannot be equated to the status of Ooralans and there is also nothing to show that the Sangam has acquired all the rights which were enjoyed by Edappally Swaroopam.
57. It is not necessary in this suit to decide whether the Tantriship is hereditary or not. It will be sufficient to consider whether by virtue of Ext.B1 there is a relinquishment of the Tantriship by the third defendant.
58. Going by the literature on the subject and also the depositions of persons who are conversant with Tantrum, it appears that the Tantrum once conferred enures to the family. The administration and management of the temple by the Samithy or the Sangam or whatever association it may be, does not get the power to change the Tantri. Usually only when the Tantri expresses his incapacity to continue as Tantri or where the family becomes extinct, services of another R.S.A. 12/2014.
44Tantri is thought of. There might have been rare occasions when a Tantri has been replaced. But to assume that the Sangam or Samithy which is concerned with the management and administration of the temple is empowered to change the Tantri is something beyond comprehension. Read in the context in which it is written, it is felt that Ext.B1 cannot be treated as relinquishment of the Tantriship. As rightly contended by the plaintiff and third defendant, the action of the Sangam in treating Ext.B1 as relinquishment letter of Tantriship cannot have any support in law. If that be so, the third defendant continues as Tantri.
59. Viewed thus, it becomes difficult to sustain the judgments and decrees of the courts below.
60. What now remains to be considered is the relief that the plaintiff is entitled to. The reliefs sought for have already been referred to. It is true that there is no declaration sought for to the effect that Ext.B1 does not constitute R.S.A. 12/2014.
45relinquishment. But on a reading of the plaint as a whole, it is evident that the allegations are that by no stretch of imagination Ext.B1 would constitute a relinquishment. The mere fact that the third defendant did not institute the suit by itself may not be a ground to deny relief if it is infact found that Ext.B1 does not amount to relinquishment and the Sangam has misconstrued the said communication. Further, it is well settled by now that in order to do justice, the courts are entitled to modulate the reliefs the parties are entitled to.
61. For the above reasons, the judgments and decrees of the courts below are set aside and the suit is decreed as follows:
i. It is declared that Ext.B1 does not amount to relinquishment of Tantriship and the decision taken by the Sangam on the basis that Ext.B1 amounts to relinquishment is set aside.
ii. The third defendant continues as Tantri of the temple.
R.S.A. 12/2014.46
iii. Defendants 1 and 2 and all other persons acting under them or at their instance are restrained by an order of injunction from interfering with the Tantriship exercised by the third defendant and the members of his family who are qualified and competent to do so.
The parties will suffer their respective costs.
P. BHAVADASAN, JUDGE sb.