Kerala High Court
Padmanabhan Namboodiripad vs Cochin Devaswom Board on 4 July, 2001
JUDGMENT S. Sankarasubban, J.
1. This Second Appeal has come before us on a reference by Justice P.K. Balasubramanyan. The reference has been made since a question of importance regarding the right of Thanthries had arisen in this case. The facts relating to the Second Appeal are as follows:
2. Plaintiff in O.S. No. 218 of 1982 on the file of the Subordinate Judge's Court, Trichur is the appellant. Defendant in the suit is the Cochin Devaswom Board, Trichur. The suit was instituted for a declaration that the right to conduct Pushpanjali and to obtain fee thereof in the Triprayar Sree Rama Swami Temple is the right vested in the plaintiff as the Thantri of the Temple. According to the plaintiff, the Triprayar Sree Rama Swami Temple is the Temple under the management of the Cochin Devaswom Board. The right to conduct Pushpanjali of the Temple is vested in the Thanthri of the Temple. Thanthravrithi belongs to the plaintiff's family. The plaintiff contends that this was granted to the plaintiff's family by Lord Parasurama and as per this right, Pushpanjali in the temple was being conducted by the members of the plaintiff's family. Only in the presence of the Thanthri, Pushpanjali was conducted by the Melsanthi. Pushpanjali is to be conducted only during Vrischika and on no other occasions. But from 1.5.1964 onwards, the Devaswom Board has been issuing tickets for conducting Pushpanjali and this Pushpanjali is being performed by the Santhi specially deputed for the purpose called "Pushpanjali Santhi". The Devaswom Board is receiving amounts for conducting Pushpanjali and the Santhies are given a portion of the amount. The plaintiff's family filed representations on 9.7.1964 to the Cochin Devaswom Board claiming its right to conduct Pushpanjali. Even though may representations were filed, no action had been taken. According to the plaintiff, the Cochin Devaswom Board wanted some authoritative documents to support the case of the plaintiff that the plaintiff's family has got right to conduct Pushpanjali.
3. The case of the plaintiff is that the is that the plaintiff produced photostat copy of Ext. A1, which is a Grandham in Thaliyola wherein it has been stated that the right to conduct Pushpanjali belongs to thanthri. But inspite of this, the right is not given to Thanthri. Hence the suit has been filed for a declaration that the right to conduct Pushpanjali in the Triprayar Sree Rama Swami Temple and for receiving the remuneration for the same belongs to the plaintiff and the plaintiff's family and for other consequential reliefs.
4. A written statement was filed by the Cochin Devaswom Board. It is stated in the written statement as follows: Pushpanjali or Archana is only an offering to God. The Thanthri or the Santhi had no right over it. They have to do the Pushpanjali as directed by the Devaswom Board. The Thanthri has no right to do Pushpanjali. The Thanthri is to do Thanthram only. Pushpanjali is not included in Thanthram. The Thanthri is to do special acts like "Kalasham" and "Prathishta". One Thanthri does these duties in several Temples. The defendant is not aware of any "Grandha" in the possession of the plaintiff. It was not produced before the Board. The alleged Grandha is not valid and binding on the Board. The plaintiff has no right to challenge the appointment of Pushpanjali Santhi. The post was created for administrative efficiency. Pushpanjali can be done only by the person who is doing Poojas in the Temple. The Thanthri has no right to receive offerings.
5. There were three Santhies at the Triprayar Temple and they were called "Melsanthi", Keezhsanthi" and Ozhivusanthi". The Ozhivusanthi was doing Pooja in the absence of Melsanthi and Keezhsanthi. When there was increase in the offerings of Pushpanjali, one person had to be appointed for Pushpanjali alone. Thus, the Ozhivusanthi was given the status of Melsanthji and he was appointed as Pushpanjali Santhi. At Triprayar Temple, the Thanthri is to do the Ucha Pooja or Pantheeradi Pooja. For this, the Thanthri is paid a salary of Rs. 82/- originally and later Rs. 100/- as salary and Rs. 39/- as allowance. Apart from this, the Thanthri is to do special offerings like Kalabham. For that, the Thanthri is paid Rs. 5/-. Further, for three days in the month of Vrischika and for ten days in connection with the Pooram in the month of Meena, the Thanthri is to do special Poojas. For those Poojas, the Thanthri is paid additional amounts. The plaintiff is not entitled to get any declaration as prayed for. The plaintiff's father admitted that Melsanthi was to do Pushpanjali. There was an admission from Puliyannur Aryan Namboodiripad, who is one of the greatest Thanthries. The Pushpanjali Santhi was appointed after consulting all connected persons. There is no merit in the petitions filed by the plaintiffs. Each Santhi was to do Pooja for three months in turn. Thus they are paid at the rate of three paise per Pushpanjali as Pushpanjali wages. The balance amount of Pushpanjali is credited to the Devaswom funds. The plaintiff did not do Pushpanjali after 1964. Thus, the plaintiff is not entitled to any right as prayed for.
6. On the basis of the above pleadings, the trial court raised four issues. Exts. A1 to A9 were marked on the side of the plaintiff, while Exts. B1 to B32 were marked on the side of the defendant. The plaintiff himself was examined as PW1, while on behalf of the defendant, two persons were examined. The trial Court was of the view that excepting Ext. A1, no documents have been produced by the plaintiff in support of his case. Ext. A1 is the Grandha of the year 703 M.E. and it was produced by PW1 as was kept at his Illom. According to the trial court, no evidence was given with regard to the origin of Ext. A1. The plaintiff started doing Thanthra at the Triprayar Temple only from the 1967. The trial court also took note of Ext. B14, the statement given by the plaintiff's father, wherein he has stated the family has no right to conduct Pushpanjali. Regarding certain statements in Ext. A1, the trial court took the view that it is only a custom and not a right. The court was of the view that Ext. A1 does not conger any right. Further, it took note of the fact that from 1964 onwards, Pushpanjali is being conducted by the Santhies. It was of the view that even though there is a right that has been barred by limitation. Thus, the suit was dismissed. Against the dismissal of the suit, the plaintiff preferred an appeal as A.S. No. 33 of 1984 before the District Court, Trichur. The Appellate Court was of the view that the custom or usage of the Thanthri performing Pushpanjali exclusively was not in vogue in 1964 or earlier when a new system was introduced. It was also of the view that Ext. B14 says that in 1964 itself the right has been given up. Hence, the suit was barred by limitation. Thus, the appeal was dismissed. It is against the above that the present appeal is filed.
7. The substantial questions of law raised in the Second Appeal are as follows:
(i) Whether the Thanthri in the Triprayar Sree Rama Swami Temple is entitled to the rights and privileges in relation to the Pushpanjali?
(ii) Whether S. 68 of the Travancore Cochin Religious Institutions Act preserves and secures the rights of the Thanthri?
(iii) Whether Ext. A1 and the recitals therein especially the recitals contained in Exts. A1(a) and A1(b) affirmatively establish the rights and privileges available to the Thanthri?
(iv) Whether the suit is barred by limitation?
Thus learned counsel submitted that the Thantri is the Guru of the idol.
9. Learned counsel for the Cochin Devaswom Board Sri. Kesavan Nair submitted that from Exts. A1(a) and A1(b) it cannot be seen that the members of the plaintiff's family, being the Thanthries of the Triprayar Temple, had the right to conduct Pushpanjali. This right to conduct Pushpanjali, according to the counsel, does not vest in the Thanthri. Learned counsel also brought to our notice Ss. 24 and 31 of the Travancore Cochin Religious Institutions Act. According to S. 24, the Board shall maintain the Devaswoms keep in the state of good repair the Temples and administer the said Devaswoms in accordance with recognised usages. According to S. 31, subject to the provisions of this Part and the Rules made thereunder the Board shall manage the properties and affairs of the Devaswoms, both incorporated and unincorporated as heretobefore and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. He submitted that this usage cannot be given a go-bye by the Devaswom Board. Learned counsel contended that the reliance placed by the lower court cannot be acted against the plaintiff because no member of the Illom has got the right to advocate the right without the consent of the other members.
10. Sri. Kesavan Nair submitted that it may be true that the Lord Parasurama created the Temple and also gave the right of Thanthriship to the plaintiff's family. But that does not mean that the Thanthri has all rights over the Temple. According to Sri. Kesavan Nair, the Thanthri may be the guardian of the idol. But unless it is shown specifically that the right to conduct Pushpanjali is vested in the family of the plaintiff, it cannot be said that the plaintiff's family had such right. Further, he submitted that even if it is accepted for argument sake that the plaintiff's family had such a right, that right is not in existence and had been taken away when the management of the Temples was taken by the Cochin Devaswom Board under the Erstwhile Cochin Religious Institutions Act. He also brought to our notice certain provisions of Government of Cochin Act, Travancore Cochin Hindu Religious Institutions Act and also certain passages from the Cochin Devaswom Board Manual to impress the court that the right to conduct Pushpanjali never vested in the Thanthri. Learned counsel also submitted that Exts. A1(a) and A1(b) does not definitely point out to the conclusion that the plaintiff's family had a right to conduct Pushpanjali in the Triprayar Temple.
11. The substantial questions of law arising for consideration is whether the Thanthri in the Triprayar Temple is entitled to the rights, privileges in respect of Pushpanjali. Before we go into the provisions of the Act, Rules or Manual, we shall consider the documents produced by the plaintiff, viz., Exts. A1(a) and A1(b). The plaintiff relied on the following passages from Exts. A1(a) and A1(b):
A reading of the above recitals does not give any indication to show that a right has been conferred on the Thanthri to conduct Pushpanjali in the Temple. Learned counsel for the appellant tried to submit that the right of the Thanthri includes the right to conduct Pushpanjali in the Temple. However, we were not shown any authority on this aspect. Thus from Ext. A1 document produced by the plaintiff, it cannot be said that the plaintiff's family had the right to conduct Pushpanjali in the Temple. Learned counsel then submitted that it is a part of history that originally the Temples in Cochin were privately managed Temples. But the Ruler has always considered himself the parents patriate of the Religious and Charitable Institutions in the State. The Scheme and policy of the Hindu Religious and Charitable Institutions Act, which with all its subsequent amendments constitutes the statute Law in the State governing these institutions, are all based upon the fundamental conception defined above. To begin with, Hindu Religion was part and parcel of the State and the protection and maintenance of the temple which is the citadel of religion was a matter of duty and concern to the Ruler. The number of temples which a Ruler owned or controlled and the level of prosperity in which they were maintained was the measure of general administrative success. All Sirkar temples were originally founded and endowed by private individuals or village communities. In the process of the shaping and consolidation of the State, the properties of many a renegade chief including temples were confiscated and Sirkar became the custodian of these Devaswoms. The unsettled and insecure conditions of society in ancient days seems to have often included helps chieftains and other private owners to surrender their deities with all their belongings to the care of the sovereign. Thus by the time the State came under British supremacy, it had a large number of Devaswoms under direct management. The State was under the direct personal rule of the Raja and had no organised administration as it is now understood. The several Devaswoms were treated as isolated units and were placed under the petty officers appointed by the directly accountable to His Highness. The Thanthri should as far as possible attend the conduct of all important ceremonies in the Temple.
12. The Devaswoms in Cochin were classified into two; incorporated and unincorporated. Incorporated Devaswoms are Devaswoms the income from the endowments attached to which was absorbed in the general revenues of the State and the expenditure necessary for the maintenance and the upkeep of which was met out of the State Revenues. Unincorporated Devaswoms are those Devaswoms, the income and the endowment of which are not absorbed in the general revenue of the State and the expenditure for the maintenance and up keep of which is met out of such income now from the Common Trust Fund. Cochin Devaswom Manual 1938 edition at page 172 deals with Karaima services. It is stated thus: "Right for certain service in the State Devaswoms such as Tantram Santhy, Kalakam, etc., had been formerly granted to and are being enjoyed as Karaima by certain families and the holders of the said Karaima services has also been granted landed property or other emoluments as remuneration for the due performance of the services. The right of Karaima and the incidents connected with it are regulated by Proclamation issued under the 13th Edavam 1094. In this Proclamation, after stating about the Karaima service, it is further stated as follows:
"Our Government have absolute control over the holders of all Karaima services and also over all the properties, and other emoluments attached to Our Diwan that, owing to incompetency, negligence or other cause, any karaima service is not being properly and regularly performed, or that an alienation of a Karaima service or of the property, or other emolument attached thereto, has been effected by the Karaima holder or by any member or members of the Karaima family. Our Diwan shall give due notice of the charge to the head of the family and to the next senior member, and also to the alienor or defaulter if he is neither the head nor the next senior member, and also to such other members of the Karaima family as Our Diwan may deem necessary, and if, after hearing their objections, if any, Our Diwan is satisfied that there has been an alienation of the Karaima service or of the property or of the other emolument attached thereto, or that, owing to incompetency negligence or other cause there has been a failure to perform the service properly or regularly, Our Diwan shall suspend, remove, determine, cancel, or deal with in any other manner, the Karaima right of the family....."
The above observation shows that so far as Cochin is concerned, the Government had control over the Karaima holders and even they had the right to terminate the Karaima service. At the same page duties of Thanthries are detailed. It is stated that the Thanthries are the Chief Priests of Temples. The right to perform Thanthram in a Temple is ordinarily hereditary. The Thanthries generally are not required to officiate in the daily services except in a few important Temples. They have to officiate only for the Utsavam and other occasional ceremonies and also for extraordinary ceremonies. So long as the Thanthries hold Thanthram in Sirkar Temples they are as much subject to the control of the Department as any other subordinate so far as that work is concerned and they are bound to obey Government orders.
13. Thus, it can be seen that the Thanthri services were subject to the control the Government. Regarding the Triprayar Devaswom, at page 189 of the Cochin Devaswom Manual, it is stated as follows: "In the Triprayar Devaswom the monopoly for the supply of articles for the conduct of some of the vazhivadus is auctioned every year and entrusted to the highest bidder and the amounts for the conduct of the same are collected by the contractor himself and no receipts are granted for the same. In the case of other vazhivadus the articles are supplied, by the Kazhakakkars. The Devaswom Officer collects the amount offered and distributes the same along the Kazhakom, Santhi, etc. for the cost of the articles supplied, the services rendered, etc., at convenient days in a month after taking their acquittances in the Nalvazhi itself and credits and Devaswom share in the Devaswom Nalvazhi". The manual also referred to the duties of Santhikars. It is stated thus:
Karaima Santhikars will be subject to the same disciplinary control as the other santhikars.
It shall be the duty of the Santhikaran:-
"(a) to perform properly and personally and at the fixed times the poojas and other services according to the pathivu and custom of the temple and generally to promote the sanctity of the temple which he serves.
(b) To follow the rules customary in the temple.
(c) To give full facility for worship to devotees consistently with the rules and customs of the temple.
(d) To conduct all Vazivadus offered, in the best manner possible.
(e) To give 'Prasadam' to the devotees.
(f) To preserve from pollution or destruction, the Bimboms, Vigrahams, the Saligramams and such other holy things within the Garbhagraham and keep the inside of the Garbhagraham scrupulously neat and tidy.
(g) To take care of the ornaments, vessels, etc., kept in his charge.
(h) to lock the Garbhagraham securely when he leaves the temple after the poojas and to keep the keys, safe in his custody.
(i) To examine carefully everything inside the Garbhagraham when he cames and opens the temple each day and to report immediately to the authorities of any special or peculiar circumstances noted; and
(j) To report at once to the local authority any accident which might have happened to the things in his charge."
14. It is seen from the Travancore Cochin Religious Institutions Act that the Triprayar Temple comes under the Trichur group and is an incorporated Devaswom. Thus, it can be seen from the past history of the Triprayar Temple it was incorporated Devaswom under the Travancore Cochin Religious Institutions Act and thereafter, continued in the Travancore Cochin Religious Institutions Act and that the affairs were controlled and managed by the Cochin Sirkar. Further, it is seen that the right and duties of the Thanthries and Poojaries were subject to the ultimate right of the Government. Learned counsel for the appellant relied on S. 68 of the Travancore Cochin Hindu Religious Institutions Act. S. 68 of the Act contemplates that subject to the provisions of this Act and of any other law for the time being in force, the Board shall be bound to administer the affairs of incorporated and unincorporated Devaswom and institutions under its management in accordance with the objects of the trust, the established usage and customs of the institutions and to apply their funds and property for such purposes. The identical provision is S. 31 with regard to the Travancore Devaswom. S. 31 came up for consideration before a Full Bench of this court and the Full Bench held as follows: "The word 'usage generally denotes a habit or a mode of conduct or a course of action. Though such behaviour may generally be linked with human actions it is not the identity of the person vis-a-vis his caste which matters in discerning the contours of any 'usage'.
15. Thus after going through the entire aspects, we find that the plaintiff has not been able to prove any right to conduct Pushpanjali by virtue of his being a Thanthri. Counsel for the Devaswom Board has filed C.M.P. No. 1135 of 2001. By separate order, we allowed that petition, which is to receive additional documents. Along with that petition, the Devaswom produced a judgment of the Supreme Court in Writ Petition Nos. 14117-18 of 1984. That was with regard to a petition submitted by the Poojaries and Thanthries of the various Temples under the Cochin Devaswom Board. The scheme has been formed with the concurrence of the Supreme Court with regard to the conditions. of the Santhies. The Triprayar Devaswom is included in the Trichur Group. The scheme envisaged a common Santhi service under the Cochin Devaswom Board and Poojari shall be a member of the Santhi service instead of being an appointee in a particular temple. Appointment of Poojaries shall be on the basis recommendations of a selection committee consisting of Thanthries constituted by the Cochin Devaswom Board. Clause 11 of the Scheme says as follows: "Offerings and other voluntary donations or contributions of any kind to deities by worshippers being the property of the deities, these shall be collected by the Devaswom authorities alone. Collection or receipt of such offerings or contributions by the Poojaries shall be considered unauthorized and such acts will constitute misconduct entailing disciplinary action". This shows that the offerings and contributions can only be collected by the Cochin Devaswom Board. Thus, the right of the Thanthri to conduct Pushpanjali or to collect fee given for Pushpanjali cannot be granted.
16. It has come in evidence in this case that from 1964 onwards, the Devaswom Board has been issuing tickets and collecting fees for the conduct of Pushpanjali. The appellant claimed a right and that right had been denied to him and from 1964 onwards, that right is being exercised by the Cochin Devaswom Board. Hence, we are of the view that even if he had a right, that right has been lost for the lapse of time. Learned counsel for the appellant raised the contention that his client is entitled to the benefit of S. 10 of the Limitation Act. We are not able to accept the contention that S. 10 of the Limitation Act applies to the facts of this case. Thus, we don't find any ground to interfere with the findings of the court below.
17. Appeal is dismissed.