Madras High Court
The Executive Officer Of vs Pattu Ammal on 28 November, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28/11/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU S.A.(MD)No.974 of 2008 and M.P.(MD)No.1 of 2008 The Executive Officer of Sri Nachiar Devasthanam, Srivilliputhur, Virudhunagar District. .. Appellant Vs. 1.Pattu Ammal 2.Vedhalakshmi (R-2 given up vide memo, dt.25.2.2008) 3.Krishnasamy Thathan 4.Vasudevan 5.M.V.Bheemaraja 6.The Deputy Commissioner, HR&CE Department, having office at Madurai. 7.The Commissioner, HR&CE Department having office at Chennai. .. Respondents This second appeal has been preferred under Section 100 of CPC against the judgment and decree dated 24.09.2007 passed in A.S.No.95 of 2005 on the file of the Subordinate Judge, Srivilliputhur confirming the judgment and decree dated 29.3.2005 passed in O.S.No.291 of 2000 on the file of the Principal District Munsif, Srivilliputhur. !For Appellant ... Mr.V.Ramakrishnan ^For Respondents... Mr.A.Sivaji for (R-1,3 and 4) Mr.TS.Md.Mohideen, AGP (R-6 and 7) - - - - :JUDGMENT
Preamble :
Whether the request of the original plaintiff and his legal representatives who are the present respondents 2 to 4, are entitled to have the deity of Sri Andal (Nachiar Koil at Srivilliputhur) to stop at the plaintiff's Mandapam to receive honours on return from Thirumukkulam (Temple Tank) at Srivilliputhur after the Ennaikappu festival held during the month of Margazhi? and Whether such honour is matter of right and whether if any civil / customary or religious rights of the plaintiffs were infringed by the action of the temple administration? are the broad questions that have come up for consideration in this Second Appeal filed by the Executive Officer of Sri Nachiar Devasthanam, Srivilliputhur.
2.Before proceeding to deal with the issues raised in this second appeal, for an easy understanding of the concepts relating to religion, denominated rights, idol worship, Vaishnavism, Agamas, Vaikhanasa agama, the history of the Srivilliputhur Temple, the story of Sri Andal and the Sampradayams followed in that temple are briefly described below.
On Religion :
3.The word "religion" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. (Ref. :
AIR 1954 SC 282) On Religious denomination :
4.The words "religious denomination" in Article 26 of the Constitution must take their colour from the word "religion" and if this be so, the expression "religious denomination" must also satisfy three conditions:
"(1)It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith;
(2)common organisation; and (3)designation by a distinctive name." (Ref.:(1983) 1 SCC 51) On Idol Worship :
5.Hindus believe that worship consists of four forms, of which idol worship is one such form. The consecration of idol should be done by the priest according to elaborate and complicated rituals accompanied by chanting of mantras and devotional songs appropriate to the Deity. Hindu worshippers believe that the divine spirit has descended in the Deity's images and if efficacy and power of the Lord are transmitted into the Deity, the image of the Deity becomes fit to be worshipped. Rules have been provided to conduct periodical or daily worship for securing continuance of the divine spirit in the image. The purpose of the temple is to provide opportunity for public worship of the Deity. When congregation of worshippers participate in the worship, a particular attitude of aspiration of devotion gets developed and confers great spiritual benefit.
6.According to Hindu belief, worship of God is of four kinds, viz., Japa -
- chanting Gayatri mantras (shloka) or Asthakshara; Homa -- giving oblation into the fire; Archana -- worship of God in the form of idol in the temple; and Dhyana -- concentration on God alone. Of these four, Archana gained an established form of worship in temple.
7.The Bhagwad Gita indicates this explicitly in the following slokas:
Ye yatha mam prapadyante tastathaiva bhajamyaham.
mama vartmanuvartante manusyah partha sarvasah [In whatever way men identify with Me, in the same way do I carry out their; men pursue my path, in all ways.] (Bh. G. IV.11) Yo yo yam yam tanum bhaktah Sraddhayarchitumicchati.
Tasya tasyachalam sraddham tameva viddhamyaham).
[Whatever form any devotee with faith wishes to worship. I make that faith steady.] (Bh. G.VII.21) On Vaishnavism and Ramanuja's school of thought :
8.The Theistic Schools of Vedanta looks upon Reality as a Supreme person, an adorable object, as the true and loving God of religion. Ramanuja's theory stresses the immanence of God in the external world and in the hearts of men. He is also transcendent.
9.The God does not merely exist from cosmos but also dwells in it. He is more than His manifestations. The essence of Visishtadvaita can be summarised in the words of a Section in Brihadaranyaka Upanishad where describing the Antaryami Brahman, it says, "He who is dwelling in the earth, is distinct from it, whom the earth does not know, whose body the earth is, and who being inside controls the earth, is the indestructible controlling soul".
10.The God of Ramanuja has a relation with the world of matter and souls. It is called Aprthak Siddhi relation, souls and matter are the attributes of the Lord. The souls and matter are real as God but they are dependent upon the Lord and do not exist without Him. Souls and matters form the body of the Lord. This relationship between souls and world and the Lord is an organic relationship that obtains between substance and the attributes, part and whole, body and soul. This brings out the intimate relation between God and the world.
11.Vaishnavists believe that God had manifested Himself in different incarnations. In other words, manifesting Himself into flesh and the very contrary of Avatara which is expressive, absolute and immaculate. The finite forms of His Avatara are not forms of material impurity but of imperium purity, the purity of Suddhasattva. Vaishnavas believe in Deity Vishnu who has manifested Himself in 10 Avataras. Lord Vishnu descends in one Avatara 'Archavatar'. It is a Deity in the form of idols in the temple.
On Agamas :
12.The institution of temple should be in conformity with the Agamas co- existing with the institution of temple worship. Construction of the temple and the institution of archakas simultaneously came into existence. The temples are constructed according to the Agama Sastra. In accordance with the Agama Sastra, archaka as professional man, attends on idols. The authority of Agama is judicially recognised in several precedents of various courts including this Court. Agamas are treatises of ceremonial law dealing with matters such as construction of temples, installation of idols therein and conducting worship of the Deity. 28 Agamas relate to the Shiva temples. The Agamas contains elaborate rules regulating how the temple should be constructed, whereat the principal deity is to be consecrated, where the other Devatas (idols) are to be installed and the place where worshippers should stand and worship the Deity. Though Agamas prescribed class discriminatory placement for worship in the temples, it became obsolete after the advent of the Constitution of India which, by Articles 14, 15, 17, 21, 25 and 26, prohibits discrimination on grounds only of caste, class, sect etc.
13.Among Vaishnavites there is further distinction between Pancharatra and Vaikhanasa system of performing rites. It is, therefore, clear that archaka of a temple, besides being proficient in the rituals appropriate to the worship of the particular Deity according to Agamas, must also belong to a particular denomination.
On Worship in Temple :
14.In the temple worship to the respective Deities, prescribed rituals should be conducted according to the aforesaid respective Agamas. The worship may be simplistic or elaborate. It is believed that the 'Kala' or the 'power' increases along with increase in investment of worship. The logic: "The increased worship is effected into the wider participation - individual as well as social. This is the gradual expansion of the grade bestowed on the greater number of the men and women as well as all the creatures. Therefore, right from Panchopachara to Devaupachara to Shodhsaopchara and to Rajopachara, all forms of worship have got their own importance. It is a matter of only one's capability. There is a definite correspondence between Vedic and Agamic worship. Agamic worship is worship of image in or outside a temple. The Mandapa of the temple corresponds to the Vaidika in the Vedic rituals, the Yupa or the post outside the Mandapa corresponds to the 'Dhvaja'. Offerings of articles in the Agamic worship correspond to offering of the Ahuti in Vedic sacrifice.
On Vaikhanasa Agama :
15.In the 'Vaikhanas Early History And Literature' at pp. 160-161, it is stated that the Vaikhanasa Shastra sets great store by purity of conduct, as is evident from Kalidasa's Shakuntala (I. 22), where King Dushyanta enquires whether Shakuntala observes Vaikhanasa Vrata. Vaikhanasas were entrusted with the management of temples and their land and property. They entered into agreements with the revenue officers and the assemblies in matters relating to the cultivation of assigned lands and sometimes also of unassigned lands. They were the hereditary trustees of Vishnu temples, managed their properties, and conducted the divine service.
16.There are more temples in South India today under the Vaikhanasa Agama than under the Pancharatra. Devotion (bhakti) and self-surrender (Prapatti) to His will are together the master-keys to open the gates of divine grace. Vaikhanasa's chief contribution to spiritual life is the emphasis on the worship, service, and adoration of the Lord in the arca (image) form in which He "descends with a non-material body", and in which He is present ever since as the surest means of liberation. Vaikhanasas place greater emphasis on arca worship.
Thenkalai and Vadakalai Sampradaya :
17.In all the Vaishnavite temples, worship and services are being conducted in conformity with Vaishnavite agamams and samprathayams and regulated by long immemorial user. The sacred literature of the Vaishnavites, which is often referred as Ubhayavedhantha, includes Sanskrit sthothrams and Tamil Prabhandhams. Nalayira Prabhandham is the compilation of devotional songs in Tamil sung by Alwars. Ramanuja, who lived between 1027 and 1137 A.D., is considered as the greatest preceptor of the Vaishnavite doctrine and is the chief exponent of the Visishtadhvaidha School of Vedantha Philosophy. Sri Vadantha Desikan and Sri Manavala Mahamuni were illustrious followers of Ramanuja. The latter, who was born in 1370 A.D. and lived upto 1466 A.D., was the author of several works.
18.Sri Vedantha Desikan was born in Thooppul a suburb of Kancheepuram, on Sravanam day in the month of Purattasi, in the Tamil year Vibhava, corresponding to September, 1268 A.D. He lived upto 1370 A.D., and wrote many works in Sanskrit and Tamil including a commentary on Sri Bhashyam. His Tamil works collected together go by the name of Desika Prabhandham. He is considered to be a great thinker, philosopher and savant and to have rendered great service to the cause of Visishtadhvaitha philosophy. Sri Vedanta Desikan is deified at Vilakkoli temple at Kanchipuram.
19.At about the 14th century, differences arose between the followers of Sri Vedantha Desikan and those of Sri Manavala Mahamuni. The followers of Sri Vedantha Desikan specialised in the study and exposition of the Sanskrit Vedas and regarded the Alwars and their Prabandhams as entitled to less reverence. Those followers came to be known as Vadakalais, or followers of northern cult. The followers of Sri Manavala Mahamuni specialised in the study and exposition of the Tamil Prabandhams of the Alwars and came to be known as Thenkalais, or followers of the southern cult. The differences between these two sects are even manifested in the thilak mark or namam (Thiruman). The Thenkalais wear the namam in 'Y' shape whereas the Vadakalais wear the namam in 'U' shape.
20.In Vaishnavite temples, there is a service called Prabandha Seva Kalam, which is performed by a congregation of Vaishnavite Worshippers. The service ordinarily consists of the recitation of portions of Nalayira Prabandham, mostly Thiruvoymozhi [Thirumozhi]. Such a recitation was made an essential part of the Vaishnavite temple worship by the famous Acharya Nathamuni. Those that are charged with the duty of reciting Prabandham are called Adhyapakahs and emoluments and perquisites are attached to Adhyapaka mirasi. Sthothra Patam service pertains to recitation of Sanskrit Slogams and there is also a mirasi office known as Adhyapake office. Prabandha Seva Kalam service is performed on certain well recognised lines. Firstly, the leader, the high priest, calls the congregation to prayer by saying "rhjpj; mUSf" (please begin). Then follows the invocation of the patron saint of the respective cult consisting of five stanzas known as the Manthram or Pathram. According to the Thenkalais, the opening verse of the Manthram is an invocation of Sri Manavala Mahamuni. The first stanza, according to the Thenkalai cult, begins with the words "Sreesailesa Dayapathram".
21.According to the Vadakalai cult, the first stanza begins with the words "Ramanuja Dayapathram" and it is an invocation of Vadaialai guru Sri Vedantha Desikan. Then follows the recitation of four Sanskrit slokas which are common to both the sects. After the manthram or invocation, comes the recitation of select passages from the Prabandhams appointed for the day, each prefaced with the laudatory verse in praise of its author, such laudatory verse being called Thaniyan. The Prabandhams are common to both the sects. At the conclusion of the recitation of the Prabandhams benedictory verses called Vazhi Thirunamam are recited. They consist of nine stanzas of which the first four are common to both the sects, while the remaining five verses differ. The important point of difference is in the last line of the respective Vazhi Thirunamam. The Thenkalai Vazhi Thirunamam ends with the words which means Manavala Mahamuni, "may you live for another hundred years". "kzths KdpfBs n;d;Dk; xU E]}w;whz;oUk;;". The Vadakalai Vazhi Thirunamam ends with the expression "Btjhe;j BjrpfBd n;d;Dk; xU E]}w;whz;oUk;" which means "Vedantha Desika, may you live for another hundred years". The Prabandha Seva Kalam comes to an end with the recitation of Vazhi Thirunamam.
Significance of wearing Thiruman Kappu :
22.The Vaishnavite Paribhasha (colloquial) for wearing Thiruman (Auspicious clay) is Thirumankappu sathal. The key word here seems to be "kappu" or protection. That protection is achieved through the Lord's weapons celebrated in Panchaayudha Sthotram. Like "dig vandhanam" before Mantra recitation, the request for protection of the limbs of one body and protection from above, behind, sides etc is a well known practice in Ahnikaas (performance of daily rituals prescribed). Hence, "thiruman kappu" can be viewed as a kavacham, that confers protection on the Vaishnavas wearing that by invoking the weapons and the power of the Lord. The 12 names associated with 12 Urdhva Pundarams have been elaborated upon by Swami Desikan in his work known as "Panniru Thirunaamam"
dedicated to the celebration of the holy feet of Kanchi Perumaal.
23.It is said that Sri Ramanuja requested Thiru Venkatamudayan to wear the Sanku and Chakra after entering his Sanctum as a serpent (Adi Sesha) through the water hole. In this content, one of the Azhwar refers to the blending of the body of Siva and Vishnu in one umalai (Thiru Thiruventhadi : verse 63). Periazhwar is the one great Azhwar, who saw the form of divine couple and cried out in Thirukkovalur "Thirukkanden, Ponmeni Kanden" [jpUf;fz;Bld;, bghd;Bkdp fz;Bld;].
24.Ramanuja is also known as Kodhagraja or the elder to Sri Aandal based on an incident that happened at Thirumaaliruncholai near Madurai. Ramanuja is also known as Thiruppavai Jeeyar, because of the joy that he experienced in reciting Thiruppavai verses and the reverence he had for the philosophy of Andal. She, unlike other Azhwars, reminded her Lord of his duties and awakened him from his slumber (yoga nithra). She reminded her Lord about his sworn duties to rescue the tormented jeevans and interceded on their behalf. Ramanuja in the spirit of Sri Andal might have put the Thiruman on the Lord to remind his duties to use his weapons to come to the rescue of the Jeevans.
25.The practice of wearing "thiruman" goes to a time much before Ramanuja. It can be said that Lord wears thiruman not as his lotus feet on his forehead, but as an indication of the power of his weapons and his presence in every one of the directions to protect his devotees. When the Vaishnavas wear the Pundrams, they consider their body as being protected by his weapons and as a temple for the divine couple. Thus, there are two separate reasons for the Thiruman wearing by the Lord and his devotees.
26.Since this case involves the Nachiar Thirukoil and the festival relating to Sri Andal it will be necessary to state the history of the temple and the story of Sri Andal.
Srivilliputhur Nachiar Temple :
27.Srivilliputhur is a semi-urban town and a municipality in Virudhunagar district. It is one of the old historical town, a 1000 year old temple. The remarkable landmark of Srivilliputhur is 11-tiered tower structure dedicated to the Lord of Srivilliputhur, known as Vatapatrasayee (Rangamannar). The tower of this temple rises 192 feet high and is the official symbol of the Government of Tamilnadu. It is said to have been built by Periyaazhvar, believed to be the father-in-law of the Temple Deity, with a purse of gold that he won in debates held in the palace of Pandya King Vallabhadeva. Periyazhvar was given the title of Battarbiran. The said story is retold in the following poem:
"ghz;oad; bfhz;lhl gl;lh;gpuhd;
te;jhbud;W Nz;oa rA;fk; vLj;J]}j Btz;oa BtjA;fs; Xjp tpiue;J fpHp mWj;jhd;
ghjA;fs; ahKila gw;W"
Story of Sri Andal :
28.Periyazhvar was also known as Vishnuchithar (referred to in Tamil as Vittu chithan). He started doing temple Kaingaryam at Srivilliputhur. There he established a Nandavanam (temple garden). After collecting flowers, he used to offer them to the deity of the temple. During Nandavanam Kaingaryam in the month of Aadi (on the day of Pooram Star), he found an infant near the basil plant (known as Tulasi in Tamil and referred to in the Vaishnavite literature as Thiruthuzhai plant. He considered the girl baby as the incarnation of goddess Lakshmi. He entrusted the child to a local couple and asked them to bring up the child. He named her as Kothai (Bfhij) [means string of flowers]. The girl grew up and attained age. Periyazhvar used to collect flowers from his Nandavanam and make garlands and offer it to the Deity. But one day he found Kothai (came to be known as Sri Andal) was wearing the garland meant for the temple deity. He took exception to the sacrilege of wearing the garland meant for the deity and regretted for her conduct. It was believed that one day the Lord appeared in his dream and made clear to him that the flowers worn by Kothai was dearer to him and he was pleased with that. Periyazhvar was thrilled to hear the divine ordainment. As she had come up of age, he wanted to get her married and was preparing for her her marriage. Kothai was completely immersed to the god Vishnu in his many forms, i.e., Sri Ranganathar (Srirangam), Perumal (Thirumoliruncholai) and Krishna (Brindavan) and was least interested in getting married to a mortal. She swore that she will only get married to the Lord. Her determination and complete devotion to God can be seen from the following verse :
ifg; bghUs;fs; Kd;dBk iff;bfhz;lhh;, fhtphp ePh;
bra;g; g[us XLk; jpUtuA;fr; bry;tdhh;:
vg; bghUl;Fk; epd;W Mh;f;Fk; va;jhJ ehd; kiwapd;
brhw;bghUsha; epd;whh; vd; bka;g;bghUSk; bfhz;lhBu.
(Nachiar Thirumozhi : 109] [Thiruarangam made wealthy by the waters of the river Kaveri. The Lord makes himself is unreachable even for the highest among us and is the essence of four Vedas. He had already taken away all my belongings, and now he has taken over my body as well.]
29.But when her longing for the union with the Lord was not taken seriously, she appealed to others to tell her adopted father Periazhvar in another verse :
brk;ik cila jpUtuA;fh; jhk; gzpj;j bka;k;ikg; bgU thh;j;ij tpl;Lrpj;jh; Bfl;oUg;gh;;
jk;ik cfg;ghiuj; jhk; cfg;gh; vd;Dk; brhy;
jk;kpilBa bgha;ahdhy; rhjpg;ghh; Mh; ndpBa?
(Nachiar Thirumozhi : 113] [My father, Periyazhvar (referred to as Vishnu Sithar) has absolute faith would have heard about the philosophy of big word of truth. If his saying is true if he will seeks the one who seeks him and if those words become false, who can achieve anything?]
30.The Purana goes that finally Periyazhvar took her to Srirangam, the abode of Lord Ranganathar. By the time he reached the southern banks of river Kaveri, Kothai disappeared. When he entered the temple, he was blessed to see Kothai standing next to Sri Ranganathar. He then appealed to the Lord to come and show glimpse of his marriage with Kothai to the people of Srivilliputhur. It was said that Lord Ranganathar descended at the temple at Srivilliputhur in a marriage attire along with Sri Andal (Kothai). Thus, Srivilliputhur became famous temple for which Mangalasasanams were done by two Azhvars, (Periyazhvar and Sri Andal).
Thenkalai sampradaya of the Srivilliputhur Temple :
31.As for the Srivilliputhur Temple, this Thenkalai tradition can also be seen even from certain internal evidence. Periyazhvar Thirumozhi forms part of the holy Nalayira Divyaprabandam. The 463rd Pasuram reads as follows:
brd;dpBahA;F jz; jpUBtA;flk; cilaha; cyF jd;id thH epd;w ek;gP jhBkhjuh rjpuh vd;ida[k; vd; cilikiaa[k; cd; rf;fug; bghwp xw;wpf; bfhz;L epd; mUBs g[hpe;jpUe;Bjd; ndp vd; jpUf;Fwpg;Bg?
32.Since Periazhwar has done the Mangalasasanam for the temple, he also must be knowing the sampradaya of the temple. When in the above pasuram that we will apply the Lords Chakra sign on his body and properties, it can only referred to the thenkalai sampradayam of the temple.
Century old disputes between the Thenkalais and Vadakalais before this Court and the Supreme Court :-
33.It must also be noted that the dispute between Vadakalai and Thenkalai is more than a century old and number of decisions of the Supreme Court as well as this court had considered such issues. It is necessary to survey those judgments, which will have a bearing in this Second Appeal.
34.In 1877, a controversy arose between the two sects with regard to certain ceremonial worship in the temple of Sri Varadarajaswami. Some Thenkalais asserted that Thodakkam, that is invitation to prayer, appertains to their Adhyapakam miras and that the defendants (the dharmakarthas of the temple and the members of the Vadakalai sect) had refused them the honours and emoluments of the Thodakamgar and had withheld payment of the income due to them as Adhyapakam mirasidars.
35.The decision is reported in Krishnaswami v. Krishnama [I.L.R. 5 Mad. 313]. This Court held that the office of Thodakkam and its honours and emoluments did not belong to Thenkalais, but, however, held that the Adhyapakam miras with the exception of Thodakkams was the exclusive right of the Thenkalais and that it pertains to all the members of that sect residing at Kancheepuram. It also declared that the Thenkalais were entitled to discharge the duties on all the occasions in which ceremonies are performed as well as at the time of processions as at services in the temples and that the Vadakalais must be enjoined to abstain from interfering with the Thenkalais in the recital of the Mantram and Prabandham otherwise than as ordinary worshippers.
36.In the year 1903, there was a litigation between some Vadakalais and Thenkalais in their representative capacities with regard to certain rituals in the temple of Sri Devarajaswami. In the year 1906 there was another litigation between the two sects.
37.The trial Court found that the permanent Thenkalai residents of Kanchipuram were exclusively entitled to conduct the Adhyapakam service at the time of the Pooja and when the idol was taken in procession within or outside the temple and that the Vadakalais may, when they chose, join the Thenkalais in the Adhyapakam service and that if they did so they must recite the same mantram, i.e., the Thenkalai mantram. The trial court was also of the view that the Vadakalais may form a separate goshti and recite their own mantrams and prabandhams at other times than during the pooja time. As regards the processions, the trial Court found that Vadakalais were entitled to form a goshti behind the idol and before the Adhyapakam goshti reciting their own mantrams and prabandhams taking care that by doing so, they did not disturb the Thenkalai Prabandham goshti in front of the deity. The trial Court, however, disallowed the claim of the Thenkalais to restrain the defendants, Vadakalais, from reciting on some occasion their Vadakalai mantrams and prabandhams." Feeling aggrieved by this decision, the plaintiffs, Thenkalais, preferred A.S.No.175 of 1910 to this Court. The Vadakalais filed memorandum of cross- objections in so far as the decree was against them. Sankaran Nair and Oldfield, JJ. held that the Thenkalai residents had the superior right of reciting prayers and that it was only the Thenkalai mantram of "Sreesailesa Dayapathram" that could be recited within the temple during any ceremonial worship or by any goshti. As for the period of the pooja, the learned Judges held that the pooja began with the ringing of the bells and ended with the distribution of Theertham and Prasadam. The right of the Thenkalais to recite Prabandhams during the pooja period was recognised and it was held that during the pooja the Vadakalais cannot repeat any prabandhams of their own, but were entitled only to join the Thenkalais as worshippers by reciting the same prabandhams which the Thenkalais would recite. The further question was considered whether the Vadakalais were entitled to recite their Prabandhams either at the time of the processions within the temple or at other places in the temple where the Thenkalais do not carry on the worship. It was pointed out that there was nothing in law to prevent any Vadakalai from worshipping the deities consistently with the equal rights of other worshippers. It was however held that any interference with the pooja from its commencement with the ringing of the bells, to its close with the distribution of Theertham and Prasadam, would be a violation of the Thenkalai mirasi rights and that in as much as processions are part of the worship, Vadakalais cannot form any goshti of their own and repeat any Prabandham different from the Prabandham recited by the mirasiholders. The decision is reported in Thiruvenkatachariar v. Krishnaswami Thathachariar [1915 M.W.N. 281].
38.The case that arose in 1902 was a suit instituted by the office-holders of sthothrapatam miras (Vadakalai-Thathachariars) in their representative capacity against some Thenkalais, holders of Athyapakam miras, in their representative capacity. After an elaborate trial, the District Judge, Chingleput, found that the Vadakalais were entitled to relief only in respect of nine occasions of which one was the occasion of the coming of Vilakkoli Desikar to the temple of Sri Varadarajaswami. The plaintiffs preferred an appeal to this Court in A.S.No.51 of 1904 which was heard by Miller and Sankaran Nair, JJ. The decision is reported in Bashiakar v. Thathachariar [20 M.L.J. 530].
"There remains for consideration the 12th claim, that is, the right to recite sthothrams when Vedanta Desikar of Vilakkoli Kovil is taken in procession to the Devaraja Swami temple on the Desikar Sathumurai day.
39.It was held that both prabandham and Vedaparayanam must be stopped at the fourpillar mantapam. Then the idol is taken to the Vahana Mantapam which is very near the four-pillar mantapam and when the Desikar idol starts from the Vahana Mantapam the sthothrams composed by Desikar are chanted till the idol comes back to the mantapam after going round the praharam. Then the sthothra- parayanam is stopped and the idol is removed to a palanquin and the prabandham and vedaparayanama are re-commenced. The decree of the trial court was modified suitably.
40.Trouble arose in 1940 between the two sects in the mater of recitation of Prabandhams. As the dispute raised problems of law and order, the Sub Magistrate, Kancheepuram, took action. He considered the decisions rendered by the High Court in the prior litigations between the two sects and issued an order under S.144 of the Code of Criminal Procedure prohibiting the Vadakalais from forming a goshti for the purpose of reciting Prabandhams other than those recited by Athyapaka Mirasidars at non-pooja periods in Sri Devarajaswami temple. He, however, made it clear that his order would not prevent any Vedakalai from worshipping the deities consistently with equal rights of other worshippers and from repeating any portion of the Prabandham separately as an act of personal devotion. On 7th September, 1953, some Thenkalais presented a petition to the Dharmakarthas of the Devasthanam stating that in the previous year the Vadakalais made an innovation by reciting Prabandhams, Tamil songs, on Vedanta Desikar Sattumurai day, that the said act of the Vadakalais was a violation of the decree passed by the High Court in A.S.No.175 of 1910 and the next Sathumurai day fell on 20th September, 1953 and that an order should be issued restraining Vadakalais from repeating what they did the previous year. Since there was difference of opinion among the trustees regarding the right of individual worship, the matter was resolved to be referred to the Deputy Commissioner, Hindu Religious and Charitable Endowments, for decision under R.66(2) of the Rules framed by the Hindu Religious Endowment Board.
41.The Deputy Commissioner held against the petitioners and dismissed the petition. The plaintiff has filed this suit under S.62 of the Act of 1951 and finally it reached this court. The first appeal was decided by a division bench. The decision is subsequently reported in V.Srinivasachariar Vs. Thatha Desika Thathachariar and others reported in 83 L.W. 407. More of that decision can be seen later in the context of the present Second Appeal.
The Supreme Court on the Constitutional guarantee for the right of a religious denomiation :
42.Before going to the legalities of the issues raised here, it is necessary to refer to certain judgments of the Supreme Court regarding the true meaning and scope of the Articles 25 and 26 of the Constitution.
43.The Supreme Court vide its judgment reported in AIR 1954 SC 282 [The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt] held in paragraph 19 as follows:
Para 19: "If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Art. 26(b).
44.The Supreme Court in that case has held that in regard to matters of religion, the right of management given to a religious body for performing activities pertaining to religion was a guaranteed fundamental right and no legislation can take away that right.
45.The Supreme Court in its judgment reported in AIR 1954 SC 388 [Ratilal Panachand Gandhi and others v. State of Bombay and others], relating to a case of a religious sect or denomination its right to manage its own affairs in the matter of religion which included its right to spend trust property or its income, had observed in paragraph 13 as follows:
Para 13: "Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the .. ............ religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking or commercial or economic, character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate." (Emphasis added)
46.The Supreme Court in its judgment reported in AIR 1958 SC 255 [Sri Venkataramana Devaru and others v. State of Mysore], which is a case arose under the right of entry into religious temple, found in paragraph 31 as follows:
Para 31: ".... We agree that the right protected by Art. 25 (2) (b) is a right to enter into a temple for purposes of worship, and that further it should be construed liberally in favour of the public. But it does not follow from this that that right is absolute and unlimited in character. No member of the Hindu public could, for example, claim as part of the rights protected by Art. 25 (2)
(b) that a temple must be kept open for worship at all hours of the day and night, or that he should personally perform those services, which the Archakas alone could perform......."
47.It is necessary to refer to another judgment of the Supreme Court in His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami, etc. v. The State of Tamil Nadu [AIR 1972 SC 1586 = (1972) 2 SCC 11]. This was with a view to re-enforce the argument that the right conferred under Articles 25 and 26 of the Constitution of India is not limited to matters of doctrine or belief and to extend the acts done in pursuance of religion and, therefore, the guarantee of rituals, ceremonies and modes of worship are integral parts of religion. But, however, about what constitutes as essential part of religion, the Court, in paragraph 12 of the judgment, observed as follows:
Para 12: "... what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion."
(Emphasis added)
48.The Supreme Court in Dr. M. Ismail Faruqui and others v. Union of India and others [1994 (6) SCC 360] while dealing with religious practices, made a distinction between religious practice and what was essential and integral part of that religion. The following passage found in paragraph 77 of the judgment makes it clear.
Para 77: "The right to practise, profess and propagate religion guaranteed under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly this right does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per se may infringe the religious freedom guaranteed under Articles 25 and 26 of the Constitution. The protection under Articles 25 and 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion." (Emphasis added)
49.The Supreme Court, in N. Adithayan v. Travancore Devaswom Board and others [2002 (8) SCC 106], in paragraph 16 had observed as follows:
Para 16: "The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down." (Emphasis added) Role of the Tamil Nadu HR&CE Act, 1959 :
50.The Act does not affect any honour to which any person including archaka or Jeengars are entitled by custom. The Act does not interfere with the performance of any religious worship or ceremony, nor does it object to any religious institution's functioning according to the Sampradayams and Agamas followed by them. Article 25(2) permits regulation of any secular activity associated with the religious practice.
51.The Act regulates administration and maintenance of charitable and Hindu religious institutions and endowments in their secular administration. It lays emphasis on preserving Hindu dharma and performance of religious worship, ceremonies and poojas in religious institutions according to their prevailing Sampradayams and Agamas. Nothing in the Act shall affect any honour to which any person is entitled by custom, the performance of or interference with the religious worship, ceremonies and poojas in religious institutions" according to Sampradayams and Agama followed in such institution. [Ref.: (1996) 9 SCC 548] The Lis between the parties in this litigation :-
Before the trial court :(O.S.No.291 of 2000)
52.One K.Veera Raghava Thathachariyar (original plaintiff), a resident of No.19, Nachiar North Mada Street, Srivilliputhur filed a suit in O.S.No.199 of 1987 before the Sub Court, Srivilliputhur, seeking for the grant of mandatory njunction directing the defendants and their men not to stop the visit of the Deity Andal to the plaintiff's Mandagapady during Margazhi Ennaikappu festival and also to pay Rs.15,001/- to the plaintiff with 12% interest towards damages as well as the cost of the suit.
53.It was his claim that his forefathers had established a Mandapadi within the building and dedicated it for the purpose of honouring the deity of Sri Andal during Margazhi Ennaikappu festival. The said building known as Vidayathi is situated at Door No.25, Town Survey No.3, Ward No.10 on the south end of the North bank street, Thirumukkulam. The custom / practice pleaded by him was that Sri Andal Deity of Nachiar Koil used to visit the Mandapam for eight days continuously during the month of Margazhi on return from the Tank called as Thiru Mukkulam at the time of Ennaikappu (Thailakkappu) festival. On return from Ennaikappu Mandapam, the Deity used to be brought to the Mandapam and will receive honours, prasadams, neivedyams and garlands and the plaintiff and his predecessors used to receive honours. For this purpose, they were paying fee called as "Swathanthiram" for the celebration of the festival. After collecting Swathanthiram charge, it is obligatory on the part of the temple authorities to see that the Mandagapadi was smoothly celebrated. Originally, the Mandapam was an old stone structure and was in dilapidated condition. It was rebuilt at a considerable cost.
54.The custom of performance of Mandagapadi and celebration of festival in this mandapam for eight days during the month of Margazhi was indisputable and it was established by custom and usage. It was admitted that Nachiar temple is under the control of the Tamil Nadu Hindu Religious and Charitable Endowment Department. It was further claimed that the temple do not belong to any particular sect. During the month of January, 1987 (second half of Margazhi), for Ennaikappu festival, the original plaintiff though was ready to perform his Mandagapadi after paying Swatanthiram (double payment), the Deity was not brought to the Mandapam of the plaintiff. The plaintiff had protested that it was illegal. It was stopped for five days. On representation to the third defendant, i.e., Deputy Commissioner, HR&CE, Madurai, the festival in the Mandapam was restored for the remaining three days. It was further claimed that the Executive Officer had no power to stop the age old established Mandagapadi. The plaintiff was under an impression that the second defendant Thakkar of Sri Nachiar Devasthanam was colluding with the Executive Officer, the first defendant. The second defendant was an ardent Thenkalaiyar and a bigot. He had deliberately stopped the Deity being brought to his Mandapam. This had put his family to shame in the eyes of the public. They were also liable for damages and should be prosecuted in a criminal court. Therefore, the original plaintiff filed the suit both for mandatory injunction as well as for damages as noted above.
55.It was further added that the building in which the plaintiff had owned was a private building bearing Vadakalai Thiruman. It was not open to the department to give a lame excuse to justify their illegal action. The plaintiff further stated that the Mandapams conducting Mandagapadi belonged to various sub castes and sub divisions of all castes. Whereas the Deity of Sri Andal is common to all divisions of Hindu faith whether they are Vaishnavite, Saivite or Madhava or whatever castes. The practice within the temple premises have no relevance to outside temple. It was also stated that they were compelling the owner of privately owned Mandapam to remove Vadakalai Thiruman and replace it with Thenkalai Thiruman. It was not out of place to state that the Thakkar himself was wearing only Thenkalai Thiruman. The plaintiff was a retired defence official and he was humiliated. Earlier the plaintiff received a notice from one Vaishnava Sabha which was set up by the defendants 1 and 2. The plaintiff also replied to that notice suitably.
56.The suit was initially lodged before the Sub Court, Srivilliputhur and was taken on file as O.S.No.199 of 1987. Pending the suit, the original plaintiff had sought for an interim injunction under Order 39 Rule 2 read with Section 151 CPC for grant of temporary mandatory injunction in I.A.No.958 of 1987. On notice from the Sub Court, the matter was partly contested. By a detailed order dated 6.1.1998, the IA was dismissed. The then learned Sub Judge held that the petitioner had not established any custom seeking for such right. The bar under Section 108 of the Tamil Nadu HR&CE Act, 1959 will apply and the suit is prima facie not maintainable. The original plaintiff had not produced any document that it was an ancient ritual. He also found that the Nachiar Koil belonged to Thenkalai tradition of Vaishnavism. It was also held that during January, 1987 when Vadakalai Thiruman was inscribed in the mandapam and a law and order problem was created. Therefore, there was no scope for grant of an interim injunction.
57.On behalf of both defendants, a common written statement was filed on 4.1.1988. It was the stand of the defendants, i.e., Executive Officer and Thakkar of Sri Nachiar Devasthanam that the temple was a Thenkalai temple. All deities, idols and the icons of all Azhwars have been adorned only with Thenkalai Thiruman. All rituals and ceremonies in respect of the temple have been from time immemorial regulated and governed by Thenkalai sampradayam. This customs and usage had been in existence from time immemorial and confirmed by the decisions of Courts. The temple adopts Vaikanasa Agamam which clearly stipulates that Deities, Gopuram, Mandapam, etc should be adorned only with Thenkalai Thiruman. It was only from 19th century, there was an attempt to bring Vadakalai sampradayam into the temple which had resulted in unnecessary and avoidable litigations. The temple authorities in terms of the Tamil Nadu HR&CE Act, were bound to respect Thenkalai Sampradayam which has been established by custom and usage. The Board of Trustees of the temple had passed a resolution that the Deity shall not be taken to the plaintiff's mandapam as he had deliberately put Vadakalai Thiruman prominently in the Mandapam in direct contravention of the well established usage.
58.It has also been stated that from time immemorial, the deities have been only taken to Mandapams which are adorned with Thenkalai Thiruman or to mandapams which belonged to other castes bearing only Thenkalai Thiruman. The plaintiff was adamant to insist keeping Vadakalai Thiruman on his Mandapam and had refused to remove the same. Therefore, it was decided not to take up the deity of Sri Andal to the Mandapam of the plaintiff for his Mandagapadi. During the month of January, 1987 for the first three days during Ennaikappu Urchavam (Thailakappu), the deity of Sri Andal was not taken to the Mandapam of the plainitff. But however the plaintiff appealed to the Deputy Commissioner of HR&CE, Madurai (D-3), who phoned to the temple authorities, presumably due to misrepresentation made by the plaintiff and to permit the deity to be taken to the plaintiff's Mandapam. This led to a serious law and order problem which necessitated calling the local police for help. Immediately, after the last day of festival, the Deputy Commissioner, HR&CE Madurai phoned to the first defendant not to take the deity any more to the plaintiff's Mandapam after he was apprised of the correct facts. It was only because of the direction from the superior authority under the Government, the deviation was permitted. Thereafter, it was never permitted.
59.It was further stated that till the dispute was created by the plaintiff, the deity was regularly taken to his Mandapam without any hitch. At that time, there was no Vadakalai Thiruman on the building. But even now the temple authorities are not averse in taking the deity to the plaintiff's Mandapam if he removes the Vadakalai Thiruman painted on the mandapam. Whereas the plaintiff was adamant in sticking to his own indefensible stand. It was further stated that Vadakalaiars belong to Srivilliputhur are celebrating Panguni 8th day festival in Saliyan Tope Mandapam which did not have any such Thiruman. It was further pointed out that the plaintiff was working in the defence establishment at Kanpur (U.P.) for over 20 years. The Mandapam was located in the leased property and the lessee had demolished the old mandapam which earlier had only a thatched pandal. During the absence of the plaintiff from Srivilliputhur for over two decades, the deity was never taken to the mandapam. After his return to Srivilliputhur, he had rebuilt the Mandapam and completed it around the year 1984-85. Even the old Mandapam did not bear Vadakalai Thiruman. It was only after the plaintiff came back after retirement from service and got settled at Srivilliputhur, he started adopting his new posture. It was only during Margazhi month of 1987, in the inner walls of the newly constructed Mandapam, the plaintiff had put Vadakalai Thiruman, thereby offending the Thenkalaiars. It was the plaintiff who was fanatic Vadakalaiyar. The plaintiff had not made out any case either by custom or usage.
60.It was further stated that there was no question of claiming any damages from the department. Under Section 108 of Tamil Nadu HR&CE Act, no suit or proceedings in respect of the administration or management of religious institution will lie except in conformity with the provisions of the Act. The plaintiff never exhausted the provisions of Sections 63 and 69 of the Act. The suit was also not related to any rituals or any right of worship and cannot be instituted in view of bar under Section 9 of CPC. It was also stated by the defendants that there was no prohibition of worship of the deity at any time inside the temple.
61.During the trial, an application was filed to bring on record the third and fourth defendants, i.e. Deputy Commissioner, HR&CE., Madurai and Commissioner, HR&CE, Madras as defendants 3 and 4, vide I.A.No.222 of 1999. It was ordered on 8.3.1999. The impleaded HR&CE Commissioner had filed a written statement dated Nil questioning the maintainability of the suit. In the meanwhile, in view of enhancement of the pecuniary jurisdictions of civil courts, the suit was transferred to the Principal District Munsif at Srivilliputhur and was renumbered as O.S.No.291 of 2000. During the pendency of the suit the original plaintiff Veera Ragava Thathachariar died on 19.1.2001. Thereafter, I.A.No.854 of 2001 was filed to bring the LRs on record, i.e.., his wife, two brothers and one sister. It was also ordered by the trial court on 7.9.2001.
62.In the meanwhile, four persons, i.e., M/s.N.V.Thirumalachariar, S.Rangasamy, Shamu Iyengar and S.Ramanuja Kanna filed I.A.Nos.579 and 580 of 2002 in O.S.No.291 of 2000 to get themselves impleaded in the suit as defendants. They claimed that that they belonged to Thenkalai Vaishanava Sampradayam and for an effective adjudication and for disposal of the suit. Since the issues raised were touching upon the religion and a sensitive issue, they should be impleaded. The suit was filed by a person belonging to Vadakalai Sampradayam and the persons belonged to Thenkalai Samparadayam wanted to come on record. After notice on these applications, the applications were rejected on the ground that the suit is defended by the temple authorities. Hence they are not necessary and proper parties.
63.Immediately against the order dated 1.7.2002, those impleading petitioners filed C.R.P.(PD)Nos.1890 an 1977 of 2002 before the Principal Bench. The said two revision petitions came to be disposed of by a common order dated 5.12.2002 and both civil revision petitions were allowed. The order refusing to implead them was set aside. But it was claimed that the order of this court dated 1.7.2002 was an ex parte order and subsequently the order was recalled and the CRPs were dismissed.
64.During trial, on behalf of the plaintiffs, four documents were filed and marked as Exs.A.1 to A.4. On the side of defendants, three documents were filed and marked as Exs.B.1 to B.3. On the side of the plaintiffs, V.Vasudevan, son of the original plaintiff was examined as P.W.1 and they also examined M/s.Subbaram, Chellaiah and Balasubramanian as P.W.2 to P.W.4. P.W.2 Subbaram was a neighbour and belonged to Vadakalai Sampradayam. P.W.3 Chellaiah was a resident of Mamsapuram village, Othapatti. He was the supplier of banana trees for the mandapam during festivals. P.W.4 Balasubramanian belonged to the Vellala community. He claimed that he used to visit the Mandapam during the festival and he knew the family of the plaintiffs.
65.On behalf of the defendants, one Panneerselvam was examined as D.W1. He was the clerk attending legal works attached to Nachiar Devasthanam and was working for 25 years. The trial court on the basis of the pleadings framed four issues, which reads as follows:
1.Whether the plaintiffs have right to insist on the visit of deity to his Mandapam during the Margali Ennai Kappu Festival?
2.Whether the plaintiffs are entitled for mandatory injunction?
3.Whether the plaintiffs are entitled for the damages?
4.What are all the reliefs and cost plaintiffs are entitled for?
66.The trial court for the first issue held that Swathandiram payment was made by the plaintiffs for several periods and payment receipts for the period from Fasli 1370 to 1375, marked as Ex.A.1 series, were issued by Nachiar Devasthanam in the name of the plaintiff (03.1.1981, 04.01.1982 and 06.1.1983 for Rs.25/- and from 07.01.1984, 07.01.1985, 7.01.1986 and 11.1.1987 for Rs.50/- ). It was also held that the Deity was taken to the plaintiff's Mandapam for three days out of usual eight days. On the basis of the communication from the third defendant, Deputy Commissioner, HR&CE, Madurai, the temple had said that on one occasion, permission was granted and on another occasion it was refused. It also found that no bylaws prohibits the visit of Deity to the plaintiff's Mandapam where Vadakalai Thiruman is inscribed . The trial court also found that some local factions led to cancellation of the visit of Deity after three days. This was despite he had paid Swathandiram fee. Since no explanation was given to the plaintiff for refusal and that he was entitled for the relief.
67.On the question of jurisdiction of the civil court entertaining the suit, the defendants placed reliance upon a judgment of this court in Muthamilselvan and others Vs. A.Manickam and others reported in 2004 (4) CTC
650. However, the learned Munsif held that the judgment was distinguishable inasmuch as it referred the temple honours receivable by persons during a temple ceremony. It involved honours to be received within the precincts of a temple. But in the suit in hand, the plaintiff was not claiming any rights within the precincts of the temple. It is only regarding the visit of the deity of Sri Andal to his Mandapam. It is not a case of the plaintiff wanting to have any personal honour. It is a case of his rendering honour to the deity and to facilitate the local people to worship deity in his Mandapam. For bestowing an honour on a person, collection of a fee was not necessary. But, in the present case, a fee was collected every year. Hence it cannot be said to be an honour conferred on the plaintiff. Therefore, the case relied to was distinguishable and the suit can be tried by the court.
68.The counsel for the plaintiffs placed reliance upon a judgment of this court in Muniandi Kone and others Vs. Ramanatha Sethupathi, Hereditary Trustee of Arulmigu Mangalanathaswami Temple and another reported in AIR 1982 Madras 170, wherein it was held that the right to take the deity from one temple to another for worshiping at the later temple is a civil right and a civil suit will lie. In the present case, it is a case of the deity being brought to the Mandapam and to other Mandapams from time immemorial. Therefore, the civil court has jurisdiction. The visit of the deity to the Mandapam of the plaintiff was in existence for over the years. Even for the Tamil month of Margazhi, 1987, necessary fee has been paid and received by the temple authorities. For three days, the deity was taken to the Mandapam. During that period, Vadakalai Thiruman was always found there. The department had not proved that it was only put up during 1987. Even the department witness had agreed that the plaintiff's family was practicing Vadakalai Sampradayam. He also admitted that it was the practice that even where there were no Thenkalai Thiruman, the deity of Sri Andal used to be taken during the festival. Hence the action of the temple authorities was discriminatory.
69.It was further held that the differences between Vadakalai and Thenkalai Thiruman has no effect in the eyes of the deity. The visit of the deity will not hurt the sentiments of reasonable people as both sub sects worship the same deity Sri Andal. If the sentiment of any one was hurt, it will be only due to parochial feelings. Neither there is any provision in the Tamil Nadu HR&CE Act nor any bylaws of the Sri Andal Temple with regard to the rites which was to be followed in the temple. Though the contention of the defendant was that the Mandapam contained Vadakalai Thiruman, but before the Deity of Andal, there cannot be difference regarding Vadakalai or Thenkalai Thiruman. The refusal to take the Deity to the mandapam of the plaintiff was not legal and just. The plaintiff has every right to insist on the visit of Deity to his mandapam. In that way of the matter, mandatory injunction was granted. Insofar as the plaintiff's claim for damages was concerned, the same was negatived on the ground that no evidence was adduced before the court to prove that the plaintiff was either mentally distressed or his health was suffered. Hence that part of the suit was rejected vide judgment and decree dated 29.3.2005.
Before the lower appellate Court : (A.S.No.95 of 2005)
70.Aggrieved by the judgment and decree of the trial court, the Executive Officer of the Nachiar Devasthanam (first defendant) filed an appeal before the Sub Court, Srivilliputhur being A.S.No.95 of 2005. Before the lower appellate court, it was contended by the appellant/first defendant that the trial court had failed to note that even the case of P.W.1 was that Thenkalai Sampradayam was adopted in all forms and ceremonies in the Nachiar Devasthanam and it has been in existence from time immemorial. Even Thenkalai Thiruman has been inscribed in the temple Tower, in all temple deities and temple mandapam and in the entire temple. The temple Archakas and Araiyars are observing only Thenkalai Sampradayam. The temple is governed by Agama Sastra (Vaikanasa) and it is the integral part of the religious faith of temple. The plaintiffs have failed to prove that the mandapam had any inscription of Vadakalai Thiruman for a long time and the visit of the Deity Sri Anal to his Mandapam with Vadakalai Thiruman. The claim of the plaintiff in the suit was for temple honour, i.e. the Deity of Sri Andal should be brought to his Mandapam. The suit is not maintainable in the light of Section 108 of the Tamil Nadu HR&CE Act. The civil court has no jurisdiction. The reliance placed by the trial court on the judgment in AIR 1982 Madras 170 was not proper as it has no application to the case on hand.
71.The lower appellate court after notices to the defendants, heard the appeal and dismissed it by its judgment and decree dated 24.09.2007. After discussing the contentions of both parties including the evidence that was let in, it had framed only one issue, i.e., whether the appellant is entitled for any relief in this appeal? The lower appellate court held that there was no rule of the HR&CE Act that Sri Andal deity cannot be brought to the Mandapam of the plaintiff. The examination of the case and the documents showed that for several years, the deity was taken to the plaintiff's mandapam. A fee has also been paid in the name of Swathanthiram. The document in Ex.A.1 series for Fasli 1370 -1375 shows that the fee has been received. During Ennaikappu festival in the year 1987, for the three days the Deity was brought to his Mandapam. Though it was contended that only when the Mandapam was rebuilt the Vadakalai Thiruman was put to the mandapam, the lower appellate court held that even if it is so, even then there was no prohibition as per the rules and regulations of the HR&CE Act for taking the deity and that the action of the appellant / first defendant was not justified. There was no loss caused to the temple by taking the deity to the plaintiff's Mandapam. Reliance was placed upon the judgment of this court in AIR 1982 Madras 170 (wrongly typed as page 179 by the lower appellate court). It was agreed by the appellant / first defendant that the original plaintiff was practicing Vadakalai Sampradayam and that the deity of Sri Andal was taken to other Mandapams. Therefore, only on the basis of personal predilections, the deity was prevented from being taken to the plaintiff's mandapam. It was not proved that Vadakalai Thiruman itself was put only in the year 1987. Sri Andal deity do not make any distinction between Vadakalai and Thenkalai. Therefore the judgment of the trial court is justified and the appeal filed before the lower appellate court was not legal and proper. Thus saying, by judgment and decree dated 24.09.2007 the appeal was dismissed and the judgment and decree of the trial court was confirmed. But it must be noted that both courts below did not refer to Exhibit A-2 which is a letter written by the Nachiar Devasthanam dated 7.1.1987 that the Vadakalai Thiruman was put in the walls of the mandapam only very recently and this was not informed to the temple Devasthanam.
Before this Court : (S.A.(MD)No.974 of 2008)
72.Aggrieved by the orders of the courts below, the Executive Officer has filed this second appeal contending that the suit was barred in terms of Section 9 of CPC read with Section 108 of the Tamil Nadu HR&CE Act. The civil court has no jurisdiction to decide the right of parties based upon temple honour. Taking the deity to mandapam cannot be claimed as a matter of right. The payment of fee is not the only criteria for granting such honours. Even in the earlier interlocutory application, the Sub Court during trial by an elaborate order had dismissed the application on the ground of bar under Section 108 of the Tamil Nadu HR&CE Act read with Section 9 of CPC. The observation made by the lower appellate court regarding the age old tradition followed in the Sri Andal temple was erroneous. The observation of the lower appellate court that the temple did not belong to either Vadakalai or Thenkalai Sampradayam was also not based upon any material. The distinction made by the trial court that an honour within the temple precincts alone was protected but not for anything done outside the temple is unwarranted.
73.Taking the Deity to Mandapam to a private person's mandapam is an honour conferred on the devotee was a finding recorded by the courts below. If the claim of the plaintiffs was that if there was customary practice for bringing the deity when Vadakalai Thiruman is exhibited in the Mandapam, it is for them to prove such custom and practice was followed in the temple and the onus of proof cannot be shifted to the defendants. The obligation to prove the custom lies only with the person who asserts such right on the basis of the custom. Both courts have shifted the burden on the appellant / first defendant.
74.When the matter came up before this court for admission, it was adjourned several times. Finally, on 23.10.2008, notice to respondents was ordered. The Registry was directed to summon the records. In the meanwhile, the first respondent herein (third plaintiff in the suit Vedhalakshmi), d/o late Veera Raghava Thathachariar, the original plaintiff, had passed away. Therefore, a direction was given to take steps to bring LRs. Subsequently, it was informed that it was unnecessary to bring any LRs on record. Hence R-2 was given up. Though the appeal was posted for final disposal on 12.2.2010, the matter was not taken up. In the meanwhile, records were received and the second appeal was posted for final disposal on 08.11.2011.
75.A writ petition was filed by the fourth respondent in the second appeal (5th plaintiff in the suit) being W.P.(MD)No.553 of 2011, seeking for a direction similar to the one made in the original plaint, but with reference to the festival that may take place on 15.1.2011. This court directed the second appeal also to be posted for final disposal with the consent of both sides. Accordingly, the second appeal came to be listed.
76.The appellant had filed a memo, dated 25.2.2008 stating that he was not prosecuting against the second respondent. The appellant has also filed a memo dated 25.2.2008 stating that the grounds raised based on the orders in C.R.P.Nos.1890 and 1977 of 2002 were not pressed as the ex parte order obtained was set aside and after restoration, the CRPs themselves were dismissed by this court. But however, he added that persons belonging the Thenkalai Sampradayam of Srivilliputhur have also filed a suit before the Sub Court seeking for a declaration that the judgment and decree obtained by the plaintiffs will not bind them being O.S.No.3 of 2006 and it is pending.
Questions of law to be decided in the Second Appeal :-
77.The following questions of law were framed for consideration in this second appeal. Parties have also addressed arguments on them.
(i)Whether the case filed by the plaintiffs is for an enforcement of temple honours conferred by the Sri Andal Koil (Nachiar Devasthanam)?
(ii)Whether the plaintiffs have proved that he and his forefathers have enjoyed privileges of the Deity of Sri Andal brought to the Mandapam after Ennaikappu festival for getting honours and was it based on any custom or usage?
and whether such a custom was proved to the extent that it was being practiced from time immemorial?
(iii)Whether the action of plaintiffs to insist that despite Vadakalai Thiruman being put in the mandapam, they can insist the Deity to be brought to their Vidayathi mandapam for performing mandagapadi.
(iv)Whether the findings recorded by the trial court and the lower appellate court that there was no Thenkalai Sampradayam for Sri Andal koil (Nachiar Devasthanam) was legally correct?
(v)Whether courts below have jurisdiction to try the suit in view of the bar under Section 108 read with Section 63 of the Tamil Nadu HR&CE Act?
(vi)Whether courts below were correct in entertaining the suit filed by the plaintiffs (respondents herein) inspite of a bar under Section 9 of CPC?
Findings on the issues :-
78.As to whether Nachiar Temple after its establishment follows Thenkalai Sampradayam, the plaintiff himself in his plaint did not make any serious dispute. In paragraph 16 of the plaint, he himself volunteered to state that the deity belonged to all divisions of Hindu faith, but the practice within the temple premises have no relevance to outside temple implying that it follows Thenkalai traditions. The defendants in their written statement had pleaded that the Nachiar Temple is a thenkalai temple and all deities, Idols and Icons of all Azhvars were adorned only with thenkalai thiruman. All the rituals and ceremonies in respect of the temple from time immemorial were regulated and goverened by Thenkalai Sampradayam. The agamas pertaining to the temple is only Vaikhanasa agamam which stipulates that all deities, gopuram, mandapams and mutts should be adorned with thenkalai thiruman which alone is appropriate to the temple and Mandapam. Only Vadakalaiars after the end of 19th century started making all kinds of claims in various temples following thenkalai sampradayam. The 5th plaintiff (P.W.1) himself admitted that in the temple gopuram, temple car, the deities and in front of the entrance in all places, only thenkalai thiruman (Namam) was affixed. He also stated that there was distinction between Vadakalai and Thenkalai Sampradayams. The archakars belonging to Sri Andal Temple will only sing thenkalai Prabandams. The Thirthakarars also belonged to thenkalai Sampradayam. He further agreed that persons belonging to one sub sect will not accept the rituals and practices of other sub sects.
79.The other witnesses examined by the plaintiff were unaware of the distinction between the two Sampradayams and they frankly admitted their ignorance of it. The trial court in order to get over the binding nature of the rituals and ceremonies in the temple to be followed as per agamas, made an easy way out by stating that both sub-sects worship the deity of Sri Andal. The differentiation of Vadakalai and Thenkalai has no effect with the deity. If any person alleges that the traditions are given up and sentiments of people will be affected, they are parochialists. There was no provision in the HR&CE Act and no bylaws in Sri Andal temple with regard to the right which has to be followed in the temple. Before Sri Andal, there cannot be any difference between Vadakalai and Thenkalai. The trial court also got over the bar on civil court's jurisdiction by holding that customary right to receive temple honours inside the temple alone cannot be instituted in a civil suit and the present controversy arose out of the honour to be conferred / received outside the temple precincts.
80.The lower appellate court before whom this distinction was raised had recorded a finding that deity Sri Andal do not make any distinction between Vadakalais and Thenkalais. This finding of the courts below clearly overlooks the constitutional guarantee given to persons who have a particular tradition to be maintained in a temple. Under Section 107 of the Tamil Nadu HR&CE Act , it was mandated that the Act will not affect rights guaranteed under Article 26 of the Constitution. Section 107 reads as follows:
"107.Act not to affect rights under Article 26 of the Constitution.--Nothing contained in this Act shall, save as otherwise provided in section 106 and in clause (2) of Article 25 of the Constitution, be deemed to confer any power or impose any duty in contravention of the rights conferred on any religious denomination or any section thereof by Article 26 of the Constitution."
81.The Government appointees to manage the affairs of the temple were also mandated to exercise the power of their superintendence and control under the Act so far as observe forms and ceremonies appropriate to the religious institution. Section 25 of the T.N.HR&CE Act reads as follows:
"25.Commissioner, etc., to observe appropriate forms and ceremonies.--[The Commissioner] [an Additional Commissioner], [a Joint Commissioner, [a Deputy Commissioner [or an Assistant Commissioner] and every other person exercising powers of superintendence or control under this Act, shall so far as may be, observe forms and ceremonies appropriate to the religious institution in respect of which such powers are exercised and in the case of a math, act in conformity with the usages of the math in his dealing with the head of the math."
82.The Act also makes a departure unlike the previous Act of the year 1951 and has conferred special powers on the officers administering the provisions of the Act. As per Section 63 of the TN HR&CE Act, the officers notified there, are entitled to enquire into and decide several forms of disputes including disputes based on customary or otherwise regarding temple honours. Section 63 reads as follows:
"63.[Joint Commissioner or Deputy Commissioner] to decide certain disputes and matters.--Subject to the rights of suit or appeal hereinafter provided, [the Joint Commissioner or the Deputy Commissioner, as the case may be], shall have power to inquire into and decide the following disputes and matters;-
(a) to (d) omitted
(e)whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter;"
83.As against the order passed under Section 63, an appeal is provided to the Commissioner, HR&CE. As against the order passed by the Commissioner, it also provides for filing of a suit. From there a further appeal lies to this court in terms of Section 70, which reads as follows:
"70.Suits and appeals.--(1)Any party aggrieved by an order passed by the Commissioner-
(i)under sub-section (1) or sub-section (2) of section 69 and relating to any of the matters specified in section 63, section 64 or section 67; or
(ii)under section 63, section 64 or section 67 read with sub-section (1)(a), 2 or (4)(a) of section 22 or under section 65 may, within ninety days from the date of the receipt of such order by him, institute a suit in the Court against such order, and the Court may modify or cancel such order, but it shall have no power to stay the order of the Commissioner pending the disposal of the suit.
(2)Any party aggrieved by a decree of the Court under sub-section (1), may, within ninety days from the date of the decree, appeal to the High Court."
84.The provisions under the HR&CE Act prohibits entertainment of any other suit. Section 108 reads as follows:
"108.Bar of suits in respect of administration or management of religious institutions, etc.--No suit or other legal proceeding in respect of the administration or management of a religious institution or 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."
85.Therefore, in the light of these provisions, it has to be seen whether the courts below had any jurisdiction to decide the matter in question.
86.With reference to the rituals and ceremonies attached to the temple, it is immaterial whether the rituals and ceremonies took place within the precincts of the temple or outside. In either of the case, it has to follow the Sampradayam of the temple followed by a particular sub sect. The courts below found that there was no difference between the two sub sects, i.e., Vadakalais and Thenkalais and before the deity all were equal. The plaintiffs insistence for the deity to bring to their Mandapam is not based upon any religious right of the plaintiffs. On the other hand, they relied upon a customary practice claiming that the practice was in existence from time immemorial. Before the courts below, they have produced fee receipts towards Swathanthiram for the years 1981 to 1987 as Ex.A.1 series. But no custom can be said to be established by the plaintiffs.
87.Both the courts below have shifted the burden on the defendants by holding that they have failed to deny the existence of the custom. If a customary right was sought to be established by the plaintiffs for enforcing a right, then the plaintiffs could not have filed a civil suit as such suit is not maintainable in terms of Section 9 of CPC. The suit for the assertion of a religious honour and privileges will not lie in a civil court. It is only when persons honour or privilege in the temple attached to the office held by him as an office holder and if there was legal obligation to discharge the duties attached to the said office, a suit will lie. When non observance of such duties may visit with penalties, then the question of maintaining the suit will arise. But, insofar as honours attached to an office was concerned, it may become an integral part of the rituals to be performed by the recipients as an office holder. In the absence of the plaintiffs claiming any right of offence in the temple, their instituting the suit itself is misconceived.
88.The evidence let in by the original plaintiff and his legal heirs clearly showed that they are Vadakalaiyars and that there was always distinction between Vadakalai and Thenkalai Sampradayams. It was also admitted that by stopping the deity coming to Mandapam, their right to receive the honour got affected. In such a case, the bar under Section 108 of the TN HR&CE Act will clearly apply. The suit itself was not maintainable. Both the courts below did not dwelve upon the fundamental issues, i.e. the bar under Section 108 and the non maintainability of the suit under Section 9 of CPC. The courts have emphasised that even if there were rituals or ceremonies held outside the temple, even those issues cannot be decided by the civil court. It was held prima facie as to which ghosti should stand in what place and who will get tulasi and in which order, cannot be considered as perquisites attached to an office. Merely because the plaintiffs have pleaded about past practice, that will not create a customary right in favour of the plaintiffs. An unbroken practice may some times lead to an established custom. But all customs will not become a part of an established rituals and ceremonies attached to the temple and its festivities. The law on the subject is very clear.
89.Both the lower courts as well as the counsel for the contesting respondents placed reliance upon a judgment of this court in Muniandi Kone and others Vs. Ramanatha Sethupathi, Hereditary Trustee of Arulmigu Mangalanathaswami Temple and another reported in AIR 1982 Madras 170. The relevant passages relied upon before this court may be usefully extracted below:
"14.Thus, the well established legal position is that suits relating to rites or rituals in a temple are not of a civil nature. However, the right to worship is a civil right which can be agitated in a civil court. In the present case, the question is whether to take the deity from the main temple to the Govindasami temple is a civil right or not.
"15....Taking of a deity from one temple to another cannot be classified as a ritual. Transporting a deity is not doing anything to the deity as such. There is no ritual in carrying the deity. The worship is to be done at the other place, viz., at Govindasami temple. It is this right to worship which was not granted by the defendant and so the plaintiffs had to agitate the matter in a civil court. As seen earlier, a right to worship is a civil right and the civil courts have jurisdiction to adjudicate on it.
16.....It is not clear as to why this payment of a nominal amount is insisted upon. But, in this payment, the plaintiffs' community has been allowed to take the deity to their temple for a long period. This customary right was not exercised in certain years because of a dispute that the amount had not been paid in time. When the exercise of a right is conditional on a payment and the payment cannot be divorced from the right, then, if the payment was not made, the temple authorities would be justified in not permitting the deity to be carried out. After all, a customary right has to be exercised with all its obligations too. This does not however, mean that the temple authorities can refuse to receive the amount and prevent the plaintiffs community from exercising the right. Having considered the nature of the custom in the present case, I am satisfied that it fulfils all the requisites which are considered in the context of a valid custom." (Emphasis added)
90.Per contra, the learned counsel for the appellant placed reliance upon a judgment of the Supreme Court A.V.G.P. Chettiar & Sons v. T. Palanisamy Gounder reported in (2002) 5 SCC 337 for contending that bar under Section 108 will squarely operate against maintenance of a civil suit and referred to the following passages found in paragraphs 28 and 29, which reads as follows:
28.Under the Endowments Act, the supervision and administration of "religious endowments" are vested in a hierarchy of officials consisting of the Commissioner, Joint Commissioner, Deputy Commissioner and Assistant Commissioner. The Endowments Act contains elaborate provisions inter alia for the maintenance and alienation of immovable property of a religious endowment.
Section 5 of the Endowments Act provides for certain Acts not to apply to Hindu religious institutions and endowments. The excepted enactments include Section 92 of the Code of Civil Procedure, 1908. Section 108 of the Endowments Act provides:
"108. Bar of suits in respect of administration or management of religious institutions, etc.-No suit or other legal proceeding in respect of the administration or management of a religious institution or 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."
29.In other words, by Sections 5 and 108 of the Endowments Act, the jurisdiction which would otherwise have vested in the civil courts to grant relief under Section 92 CPC in respect of public, religious or charitable trusts has been taken away and vested in authorities constituted under the Endowments Act.
91.He also referred to a judgment of the Supreme Court in Sinha Ramanuja Jeer v. Ranga Ramunuja Jeer reported in (1962) 2 SCR 509 = AIR 1961 SC 1720 to consider the question as to the scope of the bar under Section 9 of the CPC and the scope in which a suit can be maintained and referred to paragraphs 9 and 13, which reads as follows:
9.At the outset it would be convenient and necessary to notice briefly the law pertaining to the maintainability of suits in Civil Courts in respect of honours in temples. Section 9 of the Code of Civil Procedure describes the nature of suits which a court has jurisdiction to entertain. It can entertain every suit of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. As a corollary to this, it follows that a court cannot entertain a suit which is not of a civil nature. Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a Civil Court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies. It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject-matter of a civil suit. Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a temple cannot be placed on a higher footing than the religious rights or ceremonies, for they are integral part of the said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies. Prima facie honours, such as who is to stand in the ghoshti, in what place, who is to get the tulasi, etc., in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office, for they are only tokens of welcome of an honoured guest within the precincts of a temple. One would have thought that it would even be a sacrilege to claim a right of precedence in the presence of the Almighty God, for all go before him as humble devotees to earn his blessings and not to assert their self importance or claim their right to preferential treatment. But a century of case law in that part of the country has recognized certain rights of different grades of devotees and they and their innumerable followers began to cherish them or even to fight for them in criminal and Civil Courts. This Court, therefore, does not propose to reconsider the question of honours on first principles but only will resurvey the law on the subject with a view to ascertain, and if possible to clarify, the legal position.
13.A summary on the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a Civil Court.
(2) But 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 Court. (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; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to the office as part of its perquisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office-holder or are only shown to him as a mark of respect on the occasion of his visit to the temple.
(Emphasis added)
92.He also heavily relied upon a division bench judgment in V.Srinivasachariar in re (reported in 80 LW 407) cited supra and made reference to the following passages found in the said judgment :
"16.Section 9 of the Code of Civil Procedure describes the nature of the suits which a Civil Court has jurisdiction to entertain. It can entertain every suit of a civil nature excepting suits of which its cognisance is either expressly or impliedly barred. As a corollary to this it follows that a Court cannot entertain a suit which is not of the civil nature. Prima facie suits raising questions of religious rites and ceremonies only, are not maintainable in civil Courts, for, they do not deal with the legal rights of parties. Even so explanation to S.9 provides that a suit in which the right to property or to an office is contested is suit of civil nature, not with-standing that such right may depend entirely on the decision of a question as to religious rites of ceremonies. Two aspects to underlie the Scheme of S.9 C.P.C. The first is, that a suit asserting a right to an office is a suit of a civil nature and the second is that it does not cease to be one of civil nature even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies. There is a further, implication that questions as to religious rites or ceremonies cannot independently of such a right to an office form the subject matter of a civil suit. If the present suit were to be construed as one for a m,ere declaration of the plaintiff's right to recit Desikar's Tamil compositions at the time of his mangalasasanam, it would be clearly not maintainable. In Vathiar Venkatachariar v. Ponnappa Aiyangar [(1918) 7 L.W. 614 = AIR 1919 MAD 1026], it was pointed out that a mere claim to a religious honour consisting of receiving theertham and prasadam is not one of a civil nature and a suit to recognise such a bare right would not be entertainable by a civil court unless such honour is inseparately attached as an emolument to a religious office. In Appadurai Aiyangar v. Annangarachariar [(1939) I M.L.J. 124], it was pointed out that civil courts in India have no ecclesiastical jurisdiction and cannot decide questions of ritual except in so far as the decision of such questions is necessary for the decision of civil rights and that the court will not on a mere pretence that a right to worship has been infringed, arrogate to itself a jurisdiction which it does not possess to prescribe form of prayer, rights to religious precedence and questions of that nature.
17.....Thus it is clear that the plaintiff does not seek to establish any right to an office. All that he seeks to establish is that on a particular occasion the worship should be conducted in a particular form. This is purely a ritual and a suit to establish such a ritual is not competent under S.9 of the Code of Civil Procedure.
18.....The plaintiff's suit is not merely to obtain a declaration of his right to worship in a particular form, but is also to set aside the order of the Commissioner negativing his right. On account of this joinder of two reliefs, the matter assumes a different complexion. Neither in the Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) nor in any earlier enactments governing the Hindu Religious Endowments prior to the said Madras Act II of 1927) there was any provision enabling a private individual to approach the civil court for a relief similar to the relief prayed for by the plaintiff in this case. Madras Act II of 1927 was replaced by the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951). For the first time, provision was made in S.57 of the 1951 Act conferring power upon the Deputy Commissioner to enquire into and decide certain disputes and matters.
S.57(e), which alone is relevant, reads thus:
"Subject to the rights of suit or appeal hereinafter provided the Deputy Commissioner shall have power to enquire into and decide the following disputes and matters:
(e)Whether any person is entitled, by customs or otherwise, to any honour, "emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter."
It is by virtue of these provisions that the plaintiff has prayed for the setting aside of the order of the Commissioner. Similar provisions are contained in the Madras Hindu Religious and Charitable Endowments Act, 1959 (Madras Act XXII of 1959) by which the Madras Act XIX of 1951 has been repealed. As this suit has been instituted under the 1951 Act, it is not necessary to refer to the relevant provisions of the 1959 Act.
19.Cl.(e) of S.57 extracted above consists of two parts. The first part enables the Deputy Commissioner to decide whether any person is entitled by custom or otherwise to any honour, emoluments or perquisite in any religious institution. The present case does not fall under the part. Under the second part, the Deputy Commissioner is empowered to decide what the established usage of a religious institution is in regard to any other matter. The plaintiff seeks to bring his case under this provision.....
......Under that provision, what the Deputy Commissioner is required to decide is what the established usage of a religious institution is in regard to any other matter. This calls for an objective consideration in which the personal right of the person raising the dispute does not arise for decision. These two concepts apepar to have been deliberately adopted by the Legislature, for there may be usages out of which no pecuniary advantage may accrue to anybody in its observance. The intention of the Legislature appears to be to enable even a person having no benefit arising out of the enjoyment or observance of the usage to seek an adjudication as to the established usage of the institution. In the absence of clear words limiting the scope of the provision the plain language should be given effect to and it would not be permissible to import into the second part of clause (e) the notion that the dispute can be decided only if it is raised by a person having any pecuniary interest in the usage. As the language employed is general and comprehensive, it appears to us that, though the plaintiff is not entitled to any emolument or perquisite in the enforcement of the usage, he as an ordinary worshipper is entitled to institute the statutory suit for an adjudication as to the established usage in the institution. In this view, we held that the suit is maintainable.
20.......The dictionary meaning of the word "usage" is manner of using or treating; habitual or customary practice especially as creating a right or obligation or standard; habitual but no necessarily immemorial practice" -- vide Oxford Concise Dictionary. It would thus be seen that the usage need not necessarily be immemorial. It may even be recent. But the essentials of a custom are that it should be ancient or of remote antiquity or long established, certain, invariable, uniform and continuous and reasonable and not open to objection on the ground of public policy or otherwise and not opposed to statute. The custom to be valid must also be obligatory or compulsory in the sense that it must not be in the option of any person whether he would conform to it or not -- vide paragraph 470 in "Treatise on Hindu Law" by P.R.Ganapathi Iyer (1915 edition at page 321). The burden of proof of usage and custom is heavy on the person setting them up. The manner of proof is indicated by the Supreme Court in Saraswathi v. Jagadambal [(1953) 1 M.L.J. 697 at p.701] where it is observed :
"It is well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by apriori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another."
35...We have already pointed out that the plaintiff has no right of his own in the temple except as an ordinary worshipper. Even according to him, he cannot start the recitation of a song by himself. Only the Thathachariar starts the recitation. Even the Thathachariaris did not claim in the two litigations any right to recite Tamil prabandham in the sanctum sanctorum at the time of Desikar mangalasasanam. The plaintiff cannot, therefore, stand on a better footing. It was next argued that even according to defendants 4 and 5 nothing would be recited during the brief period of about two or three minutes when the idol of Sri Vedanta Desikar could be placed in the sanctum sanctorum, and that there would be nothing wrong if individual worshippers recite the Tamil composition of Sri Vedantha Desikar which would only be in keeping with the tradition that Sri Desikar himself recited his own composition. The fallacy underlying this argument is apparent. Such a recitation would run counter to the express and clear adjudication in Athyapakam mirasi case.
36....We have also no hesitation in holding, upon the authorities of the decision binding upon the parties, that the custom and usage pleaded by the plaintiff go directly counter to those decisions. We have no doubt that the attempt of the Vadakalais in this litigation is to introduce and establish an innovation opposed to the decisions binding on them. (Emphasis added)
93.The learned counsel for the appellant also referred to the earlier judgment of this court in M.Appadorai Aiyangar (deceased) and others Vs. P.B.Annangarachariar and others reported in 1939 (1) MLJ 124 and referred to the following passages found in pages 129 and 130, which is as follows:
"It is, I think, unquestionable that the Civil Courts in India have no ecclesiastical jurisdiction and that they cannot decide questions of ritual except in so far as the decision of such questions is a necessary incident to the decision of civil rights. It is well established that a right to worship in a particular temple is a civil right and that a right to perform a religious office to which obligations and emoluments are attached is also a civil right. It has been recognised that the court in adjudicating on a right of worship or a right to a religious office not infrequently is obliged to decide incidentally questions of ritual but it follows that the Court will not on a mere pretence that a right to worship has been infringed, arrogate to itself a jurisdiction which it does not possess to prescribe forms of prayer, rights to religious precedence and questions of that nature." (Emphasis added)
94.It will not be out of place to refer to a judgment of the Supreme Court though it related to the fight between the two sub sects within the Jain religion, i.e., in Swethambars and Digambars, but more or less relates to a similar dispute regarding prohibition of entry of one sect due to insistence of the other sect imposing its own use and the said decision is in Ugamsingh and Mishrimal v. Kesrimal reported in (1970) 3 SCC 831. The Supreme Court referred to the dispute between the two groups in paragraphs 15 and 16 and decided as to what is the civil right it can be agitated before a civil court. It may be useful to refer to those paragraphs, which reads as follows:
15.It was further contended on behalf of the appellants that the respondents' suit was not maintainable because it did not involve a dispute of a civil nature. Respondents' learned Advocate though the first indicated that he would raise a preliminary objection to this contention being urged because when the High Court set aside the judgment of the District Judge and remanded the case to be decided on merits holding that the suit was maintainable as it raised a dispute of a civil nature, the appellants ought to have appealed to the Supreme Court. The learned Advocate for the appellants however contends that the remand order of the High Court did not finally dispose of the right of the parties as such it is open to him to urge in this appeal that the suit was not maintainable on the ground that it does not raise any dispute of a civil nature. Though the preliminary objection was not subsequently pressed even on the merits, the learned Advocate for the appellant is unable to satisfy us that the suit is not of a civil nature. From the pleadings and the controversy between the parties it is clear that the issue is not one which is confined merely to rites and rituals but one which affects the rights of worship namely whether the Swetambaries by placing Chakshus, Dhwajadand and Kalash according to their tenets or by locking the Temple could preclude the Digambaries from worshipping in accordance with their tenets. It is admitted that the Digambaries will not worship the idol which is not "Nirakar" or which has Chakshus. If the Digambaries have a right to worship at the Temple the attempt of the Swetambaries to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetambari idol was to preclude the Digambaries from exercising their right to worship at the Temple. These findings clearly establish that the appellants interfered with the rights of Digambaries to worship with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code.
This position is well established. If authority was needed we may refer only to two cases. The Privy Council in Sir Seth Hukam Chand v. Maharaj Bahadur Singh1 had to deal with the practices observed by Digambaries and Swetambaries on the Parasnath Hill which is considered to be sacred by both the sects but in respect of which the Digambaries objected to the continuous employment of human beings on the hill and against building thereon of dwellings necessarily involving according to their tenets of a sacrilegious pollution and desecration of the sacred hill, while the Swetambaries had no such belief. Sir John Wallace delivering the opinion of the Board observed: "These are matters for the Jain themselves and the civil courts are only concerned with them in so far as they are relevant to questions of civil right such as an alleged interference with the plaintiffs rights to worship on the hill, and in that case the issue must be not whether the acts complained of are in accordance with orthodoxy or with previous practice, but whether they do in fact interfere with plaintiffs' rights of worship".
16.Again this Court in Nar Hari Sastri v. Shri Badrinath Temple Committee2 was concerned with the rights of the Deoprayagi Pandas to enter the Badrinath Temple along with their Yajmans or clients. Which it was claimed the Rawal or the Trustee denied and threaten to obstruct the said Deoprayagi Pandas from entering the precincts of the Temple along with their Yajmana or from assisting the pilgrims in the matter of Darshan etc. inside the Temple. The defendant, however, asserted that it was neither necessary nor desirable that the plaintiffs should be allowed to accompany their Yajmana or clients into the temple, as he had himself made adequate arrangements for the Darshan and worship of the pilgrims and that as the sole Trustee and manager of the temple he had the right to regulate entry into the temple so that overcrowding might be avoided and order maintained inside it. Mukerjea, J., (as he then was) speaking for the Court dealt with this contention in the following passage:
"The true position therefore is that the plaintiffs' right of entering the temple along with their Yajmana is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the Temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the Temple Committee may impose in good faith for maintenance of order and decorum within the Temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form."
It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by civil courts if they are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the appellant to the maintainability of the suit is not well-founded . (Emphasis added)
95.In view of the above legal precedents and based upon the factual matrix, the respondents plaintiffs have not made out any case for instituting a suit before the civil court when there is a clear bar under Section 108 read with Section 63 of the TN HR&CE Act and also bar of civil suit under Section 9 as it related to a temple honour to be given to a worshiper. The plaintiff right to worship the deity of Sri Andal inside the temple or outside are not curbed. Even in the written statement the appellant were willing to take the deity of Sri Andal after the Ennaikappu to any mandapams where there was no Vadakalai Thiruman was affixed. The plaintiffs have not established any custom so as to even move the authority under the TN HR&CE Act. The right of the plaintiffs is that of the worshippers and they do not hold any office in the temple so as to claim a right to enforce the honours attached to the said office. The plaintiffs' themselves were having doubts about the maintainability of civil suits and therefore in their initial prayer before the trial court they claimed damages from the defendants for maintaining the suit and the decree went against him and they did not file any appeal against the denial of such relief. Therefore, the attempt to claim damages was only to maintain the suit and not for any other purpose.
96.A similar attempt made by a party found fault with by this Court as early as in Appadorai Iyengar's case (cited supra). The following passage found in page 129 may be usefully extracted below:
".... the Vadagalai plaintiffs pray for a decree directing the defendants 1 to 4 to pay the plaintiffs individually or as representing the entire Vadagalai community a sum of Rs.50 as and by way of damages. This prayer is clearly nothing more than an attempt to give the colour of a civil claim to the subject matter of the suit which is in danger of being rejected as not being of a civil nature. No attempt has been made before me to argue that this claim for damages has any substance. (Emphasis added)
97.The courts below far from deciding the lis between the parties went at a tangent and gave sermons about the deity of Sri Andal not having any discrimination between any sect. For the rituals done outside the temple precincts, no sampradayam need to be followed. In essence, the courts below expressed a sentiment similar to that of the 10th Sikh Guru Hargobind Singh who explained the fundamental tenets of Sikhism in the following words:
"I wish you all to embrace one creed and follow one path, obliterating all differences of religion. Let the four Hindu castes, who have different rules laid down for them in the Shastras, abandon them altogether and, adopting the way of co-operation, mix freely with one another. Let no one deem himself superior to another. Let no one pay heed to the Ganges and other places of pilgrimage considered holy in the Hindu religion or adore the Hindu deities."
98.The plaintiffs' attitude is similar to the one which was found fault in the Srinivasachariar case (cited supra) wherein this court had observed as follows (see para 36):
"36....This attitude of the Vadakalais in putting forward some innovation or other in one form or another from time to time has been responsible for the series of litigations pertaining to this temple going on for the last two centuries."
99.But when one Nadamuni Ranga Iyengar, a Vadakalai put a Vadakalai mark over the Dhanvantri Sannadhi inside the Sri Ranganathar Temple precincts (1.10.1863), a criminal complaint was given and finally he was fined Rs.1000/- for putting the Vadakalai thiruman in a Azhwar shrine. Then matter came up before this court and this court in its judgment rendered on 21.07.1864 commenting upon the conduct of Vadakalai and comparing it with a similar disputes within the Christianity, a learned judge of this Court observed as follows :
"preciously resembles the act of a zealous protestant who should be rash or wicked enough to scrawl 'No Popery' in a Roman Catholic church..."
100.In view of the above, the second appeal stands allowed and the judgments and decrees passed by the courts below in O.S.No.291 of 2000, dated 29.3.2005 and A.S.No.95 of 2005, dated 24.09.2007 stand set aside. However the parties are allowed to bear their own costs. Consequently connected miscellaneous petition stands closed.
vvk To
1.The Subordinate Judge, Srivilliputhur.
2.The Principal District Munsif, Srivilliputhur.
3.The Deputy Commissioner, HR&CE Department, having office at Madurai.
4.The Commissioner, HR&CE Department having office at Chennai.