Bhogaraju Venkata Janakirama Rao Vs.
The Board of Commissioners for Hindu Religious Endowment [1963] INSC 214 (31
October 1963)
31/10/1963 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA GAJENDRAGADKAR, P.B.
SUBBARAO, K.
WANCHOO, K.N.
MUDHOLKAR, J.R.
CITATION: 1965 AIR 231 1964 SCR (5) 270
ACT:
Code of Civil Procedure, 1908 (Act 5 of
1908), s. 2(2)-Order passed on application under s. 57(9) modifying scheme
framed under s. 92 of the Code of Civil Procedure-Whether decree- Point not
raised in pleadings-Effect of-Madras Hindu Religious Endowment Act, 1927, s.
57(9).
HEADNOTE:
A suit was filed by certain worshipers of a
temple under s. 92 of the Code of Civil Procedure for the settling of a scheme
for its proper management and administration. The scheme was framed by the
subordinate Judge and the same was confirmed by the High Court.
On August 4, 1947 the Board of Commissioners
of Hindu Religious Endowments filed a petition under s. 57(9) of the Madras
Hindu Religious Endowments Act. 1927 in the Court of the District Judge for the
modification of the scheme. Out of the many issues raised, two of them related
to the remuneration allowable to Archakas and the Karnam, two classes of temple
officials. The decision of the District Judge was that no case was made out for
varying the remuneration payable to Archakas and Karnam under the original
scheme. In appeal, the High Court substantially modified the provisions
regarding remuneration. The High Court held that the Archakas should be
entitled to claim only half share in the Dibbi collections and to a similar
share in the pumpkins and rice offered at the time of the dedication of a calf
to the deity and to no other perquisites or emoluments. As regards the Karnam,
the High Court held that he should be entitled to a salary of Rs. 25 per
mensum. He might appoint a deputy in his place who should be a person
acceptable to the executive officer. The Karnam was not to get any share in the
Dibbi collections even if he chose to perform his duties personally. The appellants
came to this Court after obtaining a certificate from the High Court.
The first contention raised by the appellants
was that as the present proceedings originated on an application filed under s.
57(9) of the Madras Hindu Religious Endowments Act, 1927, in the absence of any
provision for an appeal conferred on the aggrieved party by the Act, the appeal
to the High Court was incompetent and hence the changes made by the High Court
were without jurisdiction. It was also contended that there was no justification
271 for interfering with the items of remuneration, emoluments and perquisites
sanctioned by custom and usage which had been recognised after contest by
decrees of courts.
Held:The appeal filed by the Board of
Commissioners it the High Court against the order of the District Judge was
competent and the High Court had jurisdiction to entertain and deal with the,
appeal. A scheme framed under s. 92 of the Code of Civil Procedure which is
deemed to be a scheme under s. 75 of the Madras Hindu Religious Endowments Act,
1927 is one which is framed in a suit and the scheme itself is a part of the
decree in the scheme-suit. It is for the modification or cancellation of such a
scheme or rather of the scheme which is part of the decree that s. 57(9) makes
provision by the machinery of an application. If after hearing the application
under s. 57(9), the scheme itself is cancelled, the previous decree will cease
to exist. In such a case, it cannot be said that the vacating of the decree
passed under s. 92 does not itself amount to a decree within the meaning of s.
2(2) of the Code of Civil Procedure. It does not make any difference if instead
of the decree being vacated by cancellation, the same is modified. An order
passed on an application under s. 57(9) is an amended decree against which an
appeal lies under s. 96 of the Code of Civil Procedure.
(ii)The reasoning of the High Court that the
remuneration enjoyed by the Archakas should be disallowed to them because of
the vagueness of the items, was not open on the pleadings and was not justified
on the facts and hence the High Court was wrong in modifying the scheme.
(iii)The High Court was wrong in modifying
the scheme regarding the Karnam. There was no prayer in the application under
s. 57(9) to abolish the office of Karnam and along with that his right to
customary emoluments. The High Court erred in depriving the Karnam of doing his
duty himself and earning the remuneration customarily payable to him for his
work. That was not even the relief claimed in the application. There was no
justification for reducing the remuneration of the Karnam to a nominal figure.
Merely because some portion of his responsibilities for keeping proper accounts
of Dibbi collection was entrusted to an executive officer did not warrant the
virtual abolition of his office.
Rajagopala Chettiar v. Hindu Religious
Endowments Board, I.L.R. 57 Mad. 271 (F.B.), referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 531 and 532 of 1961.
Appeals from the judgment and decree dated January
31, 1957, of the Madras High Court in Appeal Suit No. 357/1951.
272 T. Satyanarayana, for the appellant (in
C.A.No.531/1961)and respondents Nos. 3, 4, 6, 7 and 10 to 12
(in.C.A.No.532/61).
A. V. Viswanatha Sastri. and T.V.R. Tatachar
for the appellants (in C.A. No. 532/1961).
C.K. Daphtary, Attorney-General, R. Ganapathy
Iyer and R.N. Sachthey, for the respondent (in C.A. No. 531/1961) and
Respondent No. 2 (in C.A. No.532/1961).
October 31, 1963. The Judgment of the Court
was delivered by AYYANGAR J.-These two appeals arise out of a single judgment
of the High Court of Andhra Pradesh and are filed by two distinct parties who
felt aggrieved by it, pursuant to the grant of certificates of fitness granted
by the High Court under Art. 133(1) of the Constitution.
In Dwaraka Tirumalai--a village in the West
Godavari district of Andhra Pradesh, there is a temple dedicated to Sri
Venkateswaraswami. The administration of the affairs of this temple was being
conducted under a scheme settled on the 28th August, 1930 by the Subordinate
Judge of Eluru in Original Suit No. 1 of 1925 on his file. That was a suit
filed by certain worshippers of the temple under s. 92 of the Civil Procedure
Code for the settling of a scheme for the proper management and administration
of the institution.
The hereditary trustees of the temple as well
as the office holders thereof, and in particular the archakas and the Karnam
were party-defendants to that litigation. There had, even then, been
controversy as regards the rights of the two office holders whom we have named
and as regards the items of remuneration to which they were entitled and these
were considered and findings recorded by the Court and the provisions of the
scheme framed embodied the findings on these points. From the decision of the
learned Subordinate Judge appeals were filed to the High Court both by the
worshipper plaintiffs as well as by the Dharmakartas who were 273 members of
the family of the Zamindar of Mylavaram which was the hereditary trustee of the
temple-but both the appeals were dismissed and the scheme, as framed by the
trial Judge, was confirmed.
During the pendency of this suit in the Court
of the Subordinate Judge, the Madras Legislature enacted the Madras Hindu
Religious Endowments Act (Madras Act 11 of 1927) which we will hereafter refer
to, as the Act. It was an enactment to provide. as its preamble recited, for
"the better administration and governance" of certain Hindu Religious
Endowments. The temple of Venkateswaraswami was an institution to which the Act
applied and according to the nomenclature adopted by the Act the temple in
question was an "excepted temple" an expression which was defined as
meaning "a temple, the right of succession to the office of trustee
whereof........................ has been hereditary". As already stated,
the family of the Zamindars of Mylavaram were the hereditary trustees of this
temple.
Section 75 of the Act ran :
"75. Where the administration of a
religious endowment is governed by any scheme settled under section 92 of the
Code of Civil Procedure, 1908, such scheme shall, notwithstanding any
provisions of this Act which may be inconsistent with the provisions of such
scheme, be deemed to be a scheme settled under this Act, and such scheme may be
modified or cancelled in the manner provided by this Act." The scheme
framed by the Subordinate Judge and confirmed by the High Court thus being a
scheme which was "deemed to be a scheme settled under the Act", the
provisions of s. 57(9) were attracted and this sub-section ran:
"57. (9) Any scheme of administration
settled by a court under this section or which under section 75 is deemed to be
a scheme settled under this Act may, at any time for sufficient cause, be
modified or cancelled by the court on an 1 SCI/64-18 274 application made by
the Board or the trustee or any person having interest, but not
otherwise." In accordance with the powers contained in that behalf the
Board of Commissioners for Hindu Religious Endowments (for shortness the Board)
who were the authorities constituted to administer the Act filed an original
petition on August 3, 1947O.P. 76 of 1947 in the Court of the District Judge,
'West Godavari for the modification of the scheme. The points upon which the
modifications were sought were numerous and several of these were accepted by
the Court but only two of them are now in controversy and are the subject-
matter of the appeals and these relate to the remuneration allowable to two
classes of temple officials (a) Archakas, and (b) the Karnam, both of these
holding their office by hereditary right. The learned District Judge accepted
the contention raised by these two sets of officeholders that no case had been
made out for varying the remuneration which had been held payable to them under
the original scheme in O.S. 1 of 1925. Against this decision of the District
Judge an appeal was filed to the High Court by the Board of Commissioners and
the learned Judges allowed the appeal in part and substantially modified the
provisions as to the remuneration payable to the two officeholders. It is only
necessary to add that the archaka respondents filed a memorandum of cross
objections to the appeal preferred by the Board, but this was dismissed. That
dismissal has now become final and the claims made in that memorandum cannot be
and are not the subject of challenge before us.
Questioning the correctness of the judgment
of the High Court in the appeal by the Board both the archakas as well as the
Karnam filed petitions for certificates of fitness under Art. 133 and these
having been granted, their appeals are now before us. Civil Appeal No. 531 of
1961 is the appeal filed by the hereditary Karnam of the suit-temple, while
Civil Appeal 532 of 1961 is by the Archakas.
275 Civil Appeal No. 532 of 1961 :
We shall, first, take up for consideration
Civil Appeal 532 of 1961. which is concerned with the grievance of the archakas
against the variation made by the High Court against the scheme as settled by
the learned District Judge.
According to the appellants, they are
entitled to several items of remuneration. The major one among these is a half
share in the votive offerings in the shape of cash etc.
deposited by the worshippers in the Hudni or
dibble kept in the temple to which they claimed title by virtue of long usage
and custom. It was said that the total collections from the dibbi amounted to
near Rs. 50,000 per year. The manner in which the dibbi collections were
gathered, accounted for and divided is set out in the judgment in O.S.1 of 1925
and from its contents it is manifest that this usage had been recognised by
several previous decisions in litigations to which the temple was a party. We
might, here, mention a matter which is of relevance only to Civil Appeal 531 of
1961 and that is that from the half share to which the temple was entitled the
Karnam of the temple was by custom given for his services a one anna or a
1/16th share. As regards these the learned Subordinate Judge in his judgment in
O.S. 1 of 1925 observed :
"The archakas and the Karnam of the temple
were allowed to take their respective shares in the collections in dibbi for a
long time and though the origin of such a right is not known, it cannot be said
that it had no legal origin. It might have been recognised by the founder
him--elf, of the temple." Besides a share in the dibbi collections the
archakas also laid a claim to a share in the bhogam and besides, certain fees
on the occasion of marriages or Upanayanams performed in the temple. monies
dropped on the plate on the occasion of Dweeparadhana and certain claims to
Padaraksha Kanukalu and certain pumpkins which were brought to the temple as
offerings to the deity. It was their claim that their right 276 to these items
of extra remuneration was founded on custom and had been recognised and given
effect to from time immemorial by Courts on occasions when their right to any
of these items was disputed. The learned Subordinate Judge who framed the
scheme in O.S. 1 of 1925 did not specifically set out these minor items in the
scheme that he framed, though some of these matters were the subject of
discussion and finding in the judgment to which the scheme was a schedule but
in line with the terms of s. 79 of the Act which, by the date his judgment was
pronounced, had come into force and which read:
"79. Save as otherwise expressly
provided in or under this Act nothing herein contained shall affect any
established usage of a math or temple or the rights, honours, emoluments and
perquisites to which any person may by custom or otherwise be entitled in such
math or temple." added in paragraph 23 of the scheme these words:
"Nothing contained in the scheme shall
affect established usage with regard to the rights, honours, emoluments and
perquisites to which any person may by custom or otherwise be entitled in the
temple." There was, however, a specific reference in the scheme in cl. 12
for the division of the dibbi collections and the handing over to the archakas
of the half share to which they were entitled.
It was of the terms of this scheme that modifications
were sought by the petition filed under s. 57(9) of the Act. The petition while
conceding, in paragraph 4(e), the right of the archakas to the half share in
the dibbi collections, proceeded to state in paragraph 7(g), "7. (g) The
archakas claim a half share in the dibbi collections; such half share exceeds
Rs. 18,000 per year; in spite of this the archakas claim further moneys. As
payment of such a claim is against the interests of the temple, 277 provision
has to be made that the archakas are not entitled to any remuneration or fee or
share or in the shape of lands or income from the lands, other than their share
in the dibbi collection." and in sub-paragraph "7. (b) The practice
of giving a share of the bogums to certain temple servants is against the
interests of the temple." The modification thus sought was objected to by
the archakas who were impleaded as respondents to the petition and they averred
in paragraphs 11 and 12 that their right to the bogums and the other fees and
perquisites which they were claiming and which were being received and enjoyed
by them up to then, were rightfully theirs and that there was no reason, in law
or equity, to deprive them of these items.
The learned District Judge, after accepting
several suggestions made by the Board for the modification of the scheme in the
matter of the manner in which the dibbi accounts were to. be kept, how the
dibbi was to be opened etc. which. are no longer the subject of complaint.
observed as follows in regard to the archakas and the Karnam with whom we are
concerned:
"So far as the archakas, and the karnam
are concerned most of their rights are governed by the decrees, usage, custom,
etc., and they should be adhered to For doing these definite duties
irrespective of the question whether the worshipper visits the temple or not,
they are paid their share in the dibbi collections The person incharge of the
deity at the time of the worship will be the archakas or archakas attached to
the temple They may be required to perform special worship or conduct other
ceremonies according to usage and custom and be paid accordingly. It is
unnecessary and it will be dangerous to disturb the established 278 usage in
the temple or to create misunderstandings which will detrimentally affect the
worshipping public and the smooth working of the institution intended primarily
for the propitiating of God by the worshippers who go there seeking temporal
and spiritual advantages. So far as the other offerings by the donors to the
temple of the deity are concerned which are not put in the dibbi the archakas
or others can lay no claim........................... The archakas have got
certain rights in the prasadams. There is no reason why that right should be
commuted. These things have to be left to the good sense of the archakas and
sthanikar........................ According to P.W.1, the quantities to be
supplied for each bhogum are fixed. These things should not be changed as no
trouble has been experienced with regard to it." (Italics ours).
Thus in effect the learned District Judge,
though he made substantial modifications in the details of the administration,
refused to disturb the mode or quantum of remuneration which had previously
prevailed in the temple.
It was from this judgment that the Board
preferred an appeal to the High Court. The learned Judges of the High Court
modified the direction of the learned District Judge by stating:
"The appellant seeks also the
modification of clause (14) of the scheme in so far as it provides that the
archakas shall be entitled to claim as and for their remuneration 'only half
the share of the income from the dibbi installed in the temple and such other
emoluments, perquisites etc., allowed under the decrees of Courts, or usage'.
We are in agreement with the learned Counsel for the appellant that the
provision as regards 'other emoluments, perquisites etc., allowed to them under
the decrees of courts and ' usage' is too vague and likely to give rise to 279
difficulties. We think that their claim should be restricted to a half share in
the dibbi collections and to a similar share in the pumpkins and rice offered
at the time of the dedication, of a calf to the deity a right which appeared to
have been recognised for long. In our opinion, they should be entitled to no other
perquisites or emoluments. This part of clause (14) will be modified
accordingly.", and later in the judgment the learned Judges dealing with
the claims made in the memorandum of cross objections, added :
"Mr. Vishnurao for the
archaka-respondents has urged that the scheme needed no modification. His main
and substantial contention is in relation to the emoluments receivable by the
archakas. He contends that his clients are entitled to a half share in all the
votive offerings made to the deity.
We are not satisfied that the archakas are
entitled to such a share. It is notorious that on account of bad management,
the archakas of temples all over this part of the country have been claiming
rights far in excess of what is legitimate and proper. In the case of lands
belonging to the deity and put in their possession, claims have been generally
advanced to full ownership thereof repudiating the title of the deity thereto.
..Such claims have been negatived and an arrangement has been recently arrived
at, so far as the rest while Andhra State is concerned, whereby the archakas
are allowed to enjoy a portion of the land for their services. We have no doubt
that the claim now set up to half of whatever is offered to the deity is a
similar unfounded claim and cannot be justified on the ground of ancient usage.
In our opinion, the provision we have already suggested for the remuneration of
the archakas in dealing with the contentions of the appellant is
adequate." In consequence, clause (14) of the scheme was modified to read
:
280 "The archakas shall be entitled to
claim as and for their remuneration only half share in the dibbi collections
and to a similar share in the pumpkins and rice offered at the time of the
dedication of a calf to the deity and shall be entitled to no other perquisites
or emoluments." It is the legality and correctness of this modification in
the scheme that is the subject of the appeal by the archakas-Civil Appeal 532
of 1961.
Two points were urged by Mr. Viswanatha
Sastri learned Counsel for the appellant. The first was that no appeal lay from
the order of the District Judge modifying the scheme and that the learned
Judges of the High Court were in error in entertaining the appeal and modifying
the provision in cl. (14) regarding the remuneration permissible for the
archakas. (2) If, however, it be held that the appeal by the Board was
competent he urged that the learned Judges committed an error in effecting the
modification which they did..
We shall deal first with the submission that
no appeal lay to the High Court from the decision of the District Judge in the
Original Petition seeking modification of the scheme in O.S. 1 of 1925. The
steps in the argument on this point were as follows. Appeals are statutory and
unless some specific statutory provision could be pointed out enabling an
appeal to be filed, any order passed by an authority would be final. No doubt,
the proceedings were in the Court of the District Judge and that would by
itself ordinarily attract rights of appeal appurtenant to the decisions of that
Court. But there was no scope for the application of this principle because the
proceeding under s. 57(9) of the Act before the District Judge was initiated by
an application or an original petition and not by a suit. The resultant
decision of the District Judge was, therefore, not "a decree" as
defined by s. 2(2) of the Civil Procedure Code which runs, to quote the
material words:
"The formal expression of an
adjudication which so far as regards the Court expressing it, con- 281 clusively
determines the rights of the parties with regard to all or any of the matters
in controversy in the suit and may be either preliminary or final. It shall be
deemed to include the rejection of a plaint and the determination of any
question within section. 47 or section 144, but shall not
include................................
The order passed on O.P. 76 of 1947 was
therefore not a decree so as to attract the provision in s. 96 of the Civil
Procedure Code but merely an order and as from such an order no appeal lay
under the Civil Procedure Code, the right to appeal was dependent on the
existence of some special provision in the Act itself Section 84 of the Act
contained a provision for appeals from certain orders of District Judges on
applications made to the Court to set aside or modify certain decisions of the
Board, but there is no such provision in relation to the orders passed by a
District Judge on an application to him under s. 57(9). This necessarily led,
the argument ran, to the result that the order of the District Judge disposing
of the application by the Board was not appealable. In support of this
submission reliance was placed on the decision of a Full Bench of the Madras
High Court in Rajagopala Chettiar v. Hindu Religious Endowments Board(1).
Section 84(1) of the Act enacted :
"If any dispute arises as to whether a
math or temple is one to which this Act applies or as to whether a math or
temple is an excepted temple, such dispute shall Be decided by the Board."
Pursuant to the power thus conferred the Board decided after an enquiry that
the temple whose trustee was the appellant before the High Court, was not an
" excepted temple". From this decision the aggrieved trustee availed
himself of the remedy provided by s. 84(2) which ran:
"A trustee affected by a decision under
subsection (1) may within one year apply to the Civil 1) I.L.R. 57 Mad- 271.
282 Court to modify or set aside such
decision, but subject to the result of such application the order of the Board
shall be final." (italics ours).
The District Judge refused to set aside or
modify the order of the Board but confirmed it. Under s. 84 as it then stood,
there was no specific provision for appeals being filed against an order of the
District Court on an application filed to it under s. 84(2). Nevertheless the
aggrieved trustee filed an appeal to the High Court and thereupon a preliminary
objection was raised to the maintainability of the appeal which question was
referred to a Full Bench for its decision. The learned Judges sustained the
preliminary objection for the reason that the order of the District Court did
not fall within the definition of a decree within s. 2(2) of the Civil
Procedure Code, because the proceeding in which the order was passed was an
application and not a suit and consequently s. 96 of the Civil Procedure Code
was not attracted. There being no specific provision conferring a right of
appeal against orders under s. 84(2), the Full Bench held that no appeal lay to
the High Court. On the analogy of this decision it was urged before us that as
the proceedings in the case before us originated on an application filed under
s. 57(9), in the absence of any provision for an appeal conferred on the
aggrieved party by the Act, the appeal to the High Court was incompetent.
We are clearly of the opinion that the
principle of the Full Bench decision cited does not apply to the application
before us and that the appeal was competent. Section 57 of the Act deals with
two types of cases. The first is that comprised in sub-ss. (1) to (7). These
deal with the power of the Board to frame schemes and the proceedings in
relation thereto. Sub-section (1) empowers the Board to settle a scheme for the
proper administration of a temple and the endowments attached thereto and specifies
the manner in which proceedings for the purpose may be initiated. Sub- section
(2) enumerates 283 the provisions which may be contained in the scheme ,to be
framed. Sub-section (3) sets out the matters incidental to the determination of
the properties pertaining to the temples which are to be made part of the
scheme framed.
Sub-section (4) reads:
"57. (4) The Board may, for good and
sufficient cause, suspend, remove or dismiss any executive officer appointed in
pursuance of a scheme settled under sub-section (1) or direct the removal of
such officer." and sub-s. (5) "57. (5) The Board may at any time by
order and in the manner provided in sub-section (1) modify or cancel a scheme
settled under that sub-section." Sub-section (6) directs the publication
in the prescribed manner of the orders of the Board settling, modifying or
cancelling a scheme under the section. This completes the fasciculus of
sections dealing with the power of the Board to frame a scheme and matters
ancillary thereto. Up to this stage the proceedings are all before the Board.
Next, we have sub-s. (7) which reads "57. (7) The trustee or any person
having interest may within six months of the date of such publication institute
a suit in the court to modify or set aside such order.
Subject to the result of such suit and
subject to the provisions of sub-section (9) every order of the Board shall be
final and binding on the trustee and all persons having interest."
Therefore in the case of schemes framed by the Board itself it is clear that
parties aggrieved have a right to file suits and against the decrees passed in
such suits it need hardly be said that there would automatically be a right of
appeal under the Code. The next relevant sub-section is that numbered (9) which
we have set out earlier. The question is whether a different result as to
appeals was intended in regard to proceedings taken under s. 57(9). A scheme
which is framed under s. 92, Civil Procedure Code 284 which is "deemed to
be a scheme under s. 75 of the Act", is one which has been framed in a
suit and the scheme itself is part of the decree in the schemes it. It is for
the modification or cancellation of such a scheme or rather of the scheme which
is part of the decree that s. 57(9) makes provision by the machinery of an
application. if, after hearing the application under s. 57(9), the scheme
itself is cancelled, and s. 57(9) provides for such a contingency and
contemplates such an order-the previous decree will cease to exist. In such an
event it would scarcely be open to argument that the vacating of the decree
passed under s. 92 of the Civil Procedure Code would not itself amount to a
decree within the meaning of s. 2(2) of the Civil Procedure Code. Does it make
any difference in that instead of the decree being vacated by cancellation, it
is modified? We are clearly of the view that it makes no difference. The same
matter might be viewed from a slightly different angle.
The scheme-decree itself might have contained
a provision granting liberty to a party to the decree to move the Court by an
"application" for the modification of the scheme in stated
contingencies. If in pursuance of such liberty reserved, an application were
made to amend the scheme- decree, the resultant order though passed on an
"application" would certainly be an amended decree against which an
appeal would lie under s. 96 of the Civil Procedure Code. We need only add that
the legality of such a reservation of liberty has recently been upheld by this
Court. If the reservation of power or the liberty in the decree would produce
such a result and render the amendment of the scheme an amended decree so as to
satisfy the definition of a decree within s. 2(2) of the Civil Procedure Code,
it appears to us that it makes no difference that such a liberty to move the
Court to modify the decree is conferred not by the scheme-decree but by an
independent enactment such as the Act now before us. In the circumstances, we
consider that the appeal by the Board to the High Court was competent and that
the learned Judges had jurisdiction to entertain and deal with the appeal.
285 Coming next to the merits of the decision
of the High Court, learned counsel for the appellant pointed out that there
were seven families of archakas who held the office by hereditary right, who
divided the share of the dibbi collections and the other minor items between
themselves.
Worship in the temple went on from 5 A.M.
every day to 9 P.m. and during this entire period, 4 or 5 of the archakas have
to function continuously. Besides, there were between 40 and 50 festivals every
year which entail heavy' work.
From out of the remuneration and perquisites
they received the archakas had to engage Srivaishnavite cooks to prepare the
naivedyams and items of food prepared for the deity and there were also other
expenses of a similar nature to be incurred by them. In the face of these and
other circumstances to which he drew our attention he submitted that there was
no justification for interfering with the items of remuneration, emoluments and
perquisites sanctioned by custom and usage which had been recognised after
contest by decrees of courts. These matters were brought to our attention with
a view to demonstrating that the remuneration and perquisites which the learned
District Judge held them to be entitled, were not so utterly out of proportion
to the duties which they had to discharge in connection with the worship in the
temple. In view, however, of the circumstances to be presently mentioned we
consider that it is not necessary to pursue this line of argument. The
appellants did not dispute that the share of dibbi collections etc. and other
items of perquisites which had been fixed by custom and usage was really a
remuneration for the services performed. if that were so, it would follow that a
radical change in circumstances might justify its revision. It might be upward
or it might be downward. This position also was not disputed by learned
counsel. But learned counsel was well-founded in his submission that on the
pleadings in the case and on the evidence that was led, there was no
justification for the High Court to interfere with paragraph 14 of the scheme
as framed by the learned District Judge. It would 286 be noticed that the
learned District Judge had, in that paragraph, after making provision elsewhere
for safe- guarding the interests of the temple and for streamlining the
administration, allowed to the archakas the remuneration to which they were
held entitled by custom and usage which had been proved to be established after
contest in courts.
In O.P. 76 of 1947 which had been filed by
the Board seeking modification of the scheme settled in O.S. 1 of 1925 they
stated in paragraph 7(g) whose terms we shall repeat;
"The archakas claim a half share in the
dibbi collections;
such half share exceeds Rs. 18,000 per year.
In spite of this the archakas claim further moneys. As payment of such a claim
is against the interests of the temple, provision has to be made that the
archakas are not entitled to any remuneration or fee or share or in the shape
of lands or income from the lands, other than their share in the dibbi
collections. " From this the following seems to be clear: (1) The claim of
the archakas to a half share in the dibbi collections was not disputed, nor was
the payment said to be improper. (2) Further claims of the archakas which was
explained as being one to a share of the lands or of the income from the lands
other than the half share in the dibbi collections was disputed. In
sub-paragraph (h) an objection was raised to giving a share in the bhogams to
the temple servants in which term the archakas would be included in these term:
The practice of giving a share of the bhogams
to certain temple servants is against the interests of the temple.
Provision may be made for the framing of
suitable rules and regulations by the trustees subject to the confirmation of
the Board in regard to the remuneration of the temple servants. " In the
counter-statement filed on behalf of the archakas- respondents they asserted
their right to what had already been established by decrees of courts and 287
also to their share in the bhogams. The learned District Judge examined this
question on the basis of the evidence, upheld their claim to certain
perquisites and the result of his finding he recorded in paragraph 14 of the
scheme already extracted. The Board filed an appeal against this decision to
the High Court. In regard, however, to paragraph 14 of the scheme the only
ground urged was ground 13 which ran:
"The lower court erred in allowing the
archakas as much as half of the dibbi collections".
In other words, no objection was raised to
their enjoyment of their share in the bhogam as well as the miscellaneous items
of remuneration which they had been receiving some of which we have set out
earlier. The learned Judges of the High Court at the stage of the appeal did
not disturb the finding as regards the share of the dibbi collections.
Indeed, they could not have, because there
was not even a prayer for interfering with that share in O.P. 76 of 1947 that
was filed by the Board notwithstanding the line adopted in ground 13 of their
memorandum of appeal. To sum up, the position as it emerged at the hearing of
the appeal by the High Court was this. In their application to the District
Court the Board had conceded the right of the archakas to the half share in the
dibbi collections and desired no modification of the scheme in O.S. 1 of 1925
in that regard.
They, however, prayed for a modification in
so far as the original scheme recognised and made provision for the right of
the archakas to a share in the bhogams. The District Judge had, of course,
maintained the right to a share of the dibbi collections which was not in
dispute, but had decided against the Board as regards the modification sought
as regards bhogams in para 7(h) of the Original Petition. The Board filed an
appeal. There was no ground of appeal as regards the right of the archakas to a
share of the bhogams so that except with the leave of Court they were not in a
position to canvass the propriety of the rejection of the relief they sought.
288 The Board,. however, questioned the right
of the archakas to a share of the dibbi collections which, having regard to the
contents of their petition, was not at all open to them. The ground upon which
the learned Judges modified paragraph 14 of the scheme by eliminating all items
other than the half share of the dibbi collections was that the paragraph was
too vague and might give rise to difficulties.
In this connection the learned Judges failed
to take into ,account the fact (1) that these items of remuneration had been
claimed by them and had been, after contest, allowed by decrees of courts in
which their quantum and the circumstances in which they were to be received had
been fixed, so that though the clause which made a reference to custom and
usage appeared prima facie vague, in reality there was no vagueness about them,
(2) This apart, that the scheme framed by the Subordinate Judge in O.S. 1 of
1925 had been working for over a quarter of a century and had not given rise to
any difficulties notwithstanding that the items were not set out in the scheme
with precision, a matter which is specifically referred by the learned District
Judge in the passage extracted earlier which we have underlined. (3) That even
in O.P. 76 of 1947 filed by the Board there was no allegation that the terms of
the scheme framed in O.S. 1 of 1925 which was couched in similar language had
given rise to troubles of interpretation or that they had been productive of
confusion as to need clarification and particularly by way of elimination which
is certainly not any clarification. The reasoning of the learned Judges,
therefore, that the remuneration theretofore enjoyed by the archakas should be
disallowed to them because of the vagueness of the items was not open on the
pleadings and was not justified by the facts. In these circumstances we
consider that the learned Judges were in error in modifying cl. 14 of the
scheme framed by the learned District Judge.
Civil Appeal No. 532 of 1961 is accordingly
allowed and the original paragraph 14 of the scheme 289 as framed by the
learned District Judge is restored. The appellants are entitled to their costs
in this Court, which will be paid by respondents 1 and 2.
CIVIL APPEAL No. 531 OF 1961 :
This appeal, as stated earlier, relates to
the remuneration payable to the Karnam who also holds his office by hereditary
right. Under the scheme framed in O.S. 1 of 1925 the remuneration of the Karnam
consisted of the payment to him of a 1/16th of the half share in the dibbi
collections.
Remuneration on this basis for the duties
discharged by the Karnam had been established by custom and ancient usage and
it was this that was specifically set out in the scheme- decree passed in O.S.
1 of 1925. In its application to the District Court the Board had prayed that
the remuneration so fixed might be modified. The allegation in the petition in
relation to this matter is to be found in paragraph 8(g) where it stated:
"The Karnam of the temple who now gets a
share of the dibbi collections never does service but employs a deputy on a pay
which has no proportion to the remuneration that he-the Karnam--gets from the
dibbi. The work that the deputy does is inadequate and thus the temple loses. A
provision has to be made in the Scheme that if the Karnam does not himself do
duty but employs a deputy, the temple is bound to pay out of the dibbi only the
actual salary of the Karnam." In the counter-statement filed by the Karnam
who was impleaded as the 9th respondent to the petition he averred "The
duties of the karnam of the temple or his deputy consists of sitting at the
dibbi and maintaining a chitta of the offerings deposited in the dibbi by the
pilgrims. In accordance with immemorial custom and usage, the dibbi collections
are counted every day in the presence of the manager, the archakas and the
karnam or their representatives, weighed and divided as per their respective
shares" 290 and in the later paragraphs an objection was raised to the
mode of remuneration suggested in cases where a deputy was employed as being
contrary to long established usage and custom. In the Judgment of the learned
District Judge he said this in regard to the Karnam:
"So far as the karnam is concerned, he
should preferably render the duty himself, but if for any reason he prefers to
engage himself in other work, be will be entitled to have a qualified deputy
who should be accepted by the executive officer and the managing hereditary
trustee. The deputy will not be entitled to any share in the dibbi income, but
only the karnam who will make his own arrangements for payment to him."
This was embodied in paragraph 17 of the modified scheme as framed by the
District Judge, and this ran:
" 17. The karnam should render duty
himself He should not appoint a deputy and if he does, the karnam will not be
entitled to have any share in the dibbi income. Any deputy appointed by the
karnam will be allowed to do his duties only if the deputy is approved by the
Executive Officer and he will be paid only such salary as may be fixed by the
Executive Officer. Deputies can be appointed by the karnam only with the
previous approval of the executive officer." The Board felt aggrieved by
this direction and in the memorandum of appeal it complained:
"The lower court should have seen that
the provision in cl. 17 for the office of the karnam is not in the interests of
the institution." The learned Judges of the High Court modified para graph
17 by depriving the karnam of his share in the dibbi collections, even if he
chose to perform duties personally and after the modification the paragraph
read:
291 "The karnam shall be entitled to a
salary of Rs. 25 per mensem. He may appoint a deputy in his place who should be
a person acceptable to the executive officer." The reasons assigned for
making this modification were two:(1)As a result of the modifications effected
by the learned District Judge, as regards which no objection was raised,
provision had been made for, the appointment of an executive officer whose duty
it was to keep regular accounts, which would show the particulars of the
offerings made in the dibbi from which the share due to the archakas could be
computed, the karnam's duties and responsibilities had been lessened, if not
eliminated., (2) Since the karnam, as a matter of practice, discharged his
duties through deputies appointed by him, it was not necessary that the
trustees should insist upon his personal attendance and the temple might
therefore benefit from the practical abolition of this hereditary office. The
learned Counsel for the appellant contests the correctness of this approach to
the problem and we agree with him that the learned Judges were in error in
modifying s. 17 of the scheme in the circumstances of the case. The office of
Karnam was held by hereditary right and without entering into a discussion of
the question as to whether such an office could be abolished and if so, in what
circumstances, there was no prayer in the application by the Board to abolish
that office and along with it the right of the karnam to the customary
emoluments.
The averment in paragraph 8(g) which we have
extracted earlier, was (a) a complaint that the Karnam employed deputies on a
nominal salary paid by him and that the work of these deputies was unsatisfactory,
(b) Consequent on this, there was a prayer for a direction whereby when the
karnam entrusted his duties to a deputy, the karnam should not be entitled to
the customary remuneration of an 1/16th part in the half share of the dibbi
collections which pertained to the temple but only to the actual wages paid to
the deputy. The subject-matter of the dispute which had to be 292 resolved by
the District Court and of the High Court on appeal was only whether the scheme
framed in O.S. 1 of 1925 should be modified so as to provide for the payment of
a lesser remuneration where the karnam employed a deputy. The learned District
Judge bad considered these matters and had given his directions in paragraph 17
of the scheme.
The learned Judges of the High Court, however,
did not address themselves to the pleadings and to the only matter in
controversy before them viz., (1) should the karnam be entitled to appoint
deputies to perform his duties and if so, in what circumstances and subject to
what conditions, (2) in such an event what should be the remuneration payable
to the karnam. Instead they proceeded practically to abolish. the hereditary
office and permitted him a nominal remuneration. It is unnecessary to consider
whether it was such a drastic change that was intended to be urged in the
relevant ground of appeal to the High Court which we have set out earlier, for
we are clearly of the opinion that the learned Judges were in error in
modifying in the manner they did para 17 of the scheme. Let us see the actual effect
of para 17 of the scheme as framed by the learned District Judge. He recognised
the customary remuneration of the office-holder. But that remuneration was not
by custom intended to be a sine cure,, to be drawn and enjoyed by the Karnam,
he being at liberty to appoint a deputy at a nominal salary to perform the
duties of the office. Normally the Karnam himself had to perform the duties and
it was only when owing to unavoidable reasons he could not do so that custom
sanctioned the employment of a deputy. By the order that he passed he
recognised this also, and made it incumbent on the Karnam to do duties
personally in order to entitle him to claim the customary remuneration. The
conditions set out in para 17 therefore were just both as regards the institution
as well as the office-holders and gave effect to the customary rights and
obligations of both.But by their order the learned Judges 293 deprived the
Karnam of doing duty himself and earning the remuneration customarily payable
to Gm for such service.
That, as we have pointed out, was not even
the relief claimed in the application--assuming that such relief was claimable
and could have been granted by the Court functioning under the Act having
regard to the terms of s. 79 we have extracted earlier, a matter about which we
prefer not to express any opinion.
The learned Judges themselves appeared to
recognise that the office being hereditary they could not abolish it. But if
this were so, it was not proper to direct the virtual abolition of this office and
depriving the office-holder of his customary remuneration merely because some
portion of the responsibilities for keeping proper accounts of dibbi
collections was entrusted to an executive officer. Learned Counsel for the
appellants pointed out that the appointment of' an executive officer would not
by itself eliminate the need for a Karnam and the performance of the duties
which custom and usage laid on him: We agree with him in this submission. In
the circumstances, we see no justification for reducing his remuneration to a
nominal figure. We consider the directions given by the learned District Judge
proper and sound and are clearly of the opinion that they did not call for any
interference by the learned Judges of the High Court.
Civil Appeal 531 of 1961 is also allowed and
paragraph 17 of the modified scheme, as framed by the District Judge, is
restored. The appellant would be entitled to the costs of their appeal in this
Court.
Appeals allowed.
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