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O. Nagiah Bathudu and ors. Vs. Muthacharry - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1901)11MLJ215
AppellantO. Nagiah Bathudu and ors.
RespondentMuthacharry
Cases Referred and Venkatachalapati v. Subbarayadu I.L.R.
Excerpt:
- - i think the plaintiffs failed to make out any case and that the suit was rightly dismissed. 4. the plaintiffs' case was that a certain temple, of which the defendant was dharmakarta, had been built and a goddess consecrated for the special benefit of worshippers residing in certain streets in black town, madras ;that those worshippers and their descendants had contributed towards the expenses of the festivals appertaining to the goddess and enjoyed the right of having the goddess carried in procession in front of their houses in order that they might perform worship at the several stoppages ;that from time immemorial the customary route for the procession, except on certain special occasions, included a street known as kristnaswami covil street, in which the plaintiffs resided; and..........street and on certain specified occasions, for the procession to pass through kristnaswami covil street. plaintiffs 1 and 5 based their alleged rights entirely on mamool. the defendant contended that he had a discretion with regard to the route which the processions should take. in a case which came before this court in 1881 (subbaraya gurukal v. chellappa mudali i.l.r. 4 m.k 315 in which the custom with reference to ceremonies and processions in connection with idols was involved, sir charles turner, c.j., and sir muthusami aiyer, j., observe: 'we believe there is no general custom by which this question can be at once decided. it may be the dharmakarthas have no power to change custom ; it may be that they, or a majority of them, have a discretion to do so either arbitrarily or in.....
Judgment:

Arnold White, C.J.

1. In my judgment this suit ought to have been dismissed on the ground that the right claimed by the plaintiffs was not cognizable by a Civil Court.

2. Assuming that the suit related to a matter of which a Civil Court could take cognizance, I agree with the view taken by the learned Judge who tried the case. I think the plaintiffs failed to make out any case and that the suit was rightly dismissed.

3. I propose to deal with the case first, as the learned Judge dealt with it, that is, on the assumption that the suit was cognizable by a Civil Court.

4. The plaintiffs' case was that a certain temple, of which the defendant was Dharmakarta, had been built and a goddess consecrated for the special benefit of worshippers residing in certain streets in Black Town, Madras ; that those worshippers and their descendants had contributed towards the expenses of the festivals appertaining to the goddess and enjoyed the right of having the goddess carried in procession in front of their houses in order that they might perform worship at the several stoppages ; that from time immemorial the customary route for the procession, except on certain special occasions, included a street known as Kristnaswami Covil Street, in which the plaintiffs resided; that the defendant, with a view to injure the plaintiffs and other residents in Kristnaswami Covil Street, proposed to vary the customary route by omitting therefrom the whole of the said street; and the plaintiffs claimed a declaration of their rights, an injunction that future processions should take the alleged customary route, and damages. The defendant's case was that the temple was founded for the benefit of the Kamara or Panchala community of the Town of Madras ; that the right of management of the temple and its affairs is vested in the members of that community as recognised by a decree of this Court ; and that the temple was not built nor the goddess con- secrated for the benefit of worshippers residing in streets forming the alleged customary route. The defendant denied that the plaintiffs had acquired, or could acquire, any legal right by reason of any custom or practice to have the procession carried through any particular streets, and contended that the manner of conducting the processions was a matter involving religious ritual which depended on various considerations ; that the discretion of the Dharma-kartha and the sabha appointed to manage the affairs of the temple was not subject to any external influence or control; and that, in varying the route of the procession, the Dharmakartha had acted bona-fide and in the best interests of the temple.

5. There is a distinction between the case of the 1st and 5th plaintiffs, who are members of the Kamara caste for whose benefit the defendant alleges, and the plaintiffs do not appear to deny, the temple was instituted, and that of the 2nd, 3rd and 4th defendants, who were not members of this caste but merely residents in the street in question who had been in the habit of availing themselves of the opportunity to worship when the procession passed down their streets. As regards plaintiffs 2, 3 and 4, I am clearly of opinion that they have established no right. They are not members of the Kamara caste, they have no proprietary interest in the institution, they have no voice in the appointment of the Dharmakartha, and they have no control over him. I know no principle of law upon which it can be said by custom, prescription, or otherwise, plaintiffs 2, 3 and 4 have acquired any rights as against the defendant. It is not a case in which a man claims a right by custom to do a certain act. 'Plaintiffs 2 to 4 claim a right by custom not merely to worship the goddess but to compel the defendant to bring the goddess past their houses in order that they may worship. As regards plaintiffs 2 to 4 the fact that they resided in the particular' street gave them the opportunity of participating in certain religious advantages which they would not otherwise have enjoyed. The fact they enjoyed these advantages for a certain period gives them no rights as against the defendant,

6. The case of plaintiffs 1 and 5, however, stands upon a different footing. There was no evidence before the Court below as to the route taken for the procession prior to 1874. From 1874 to 1878 there were no processions at all ; but from 1878 onwards it was agreed that the practice had been, except in the case of a death in the street and on certain specified occasions, for the procession to pass through Kristnaswami Covil Street. Plaintiffs 1 and 5 based their alleged rights entirely on mamool. The defendant contended that he had a discretion with regard to the route which the processions should take. In a case which came before this Court in 1881 (Subbaraya Gurukal v. Chellappa Mudali I.L.R. 4 M.k 315 in which the custom with reference to ceremonies and processions in connection with idols was involved, Sir Charles Turner, C.J., and Sir Muthusami Aiyer, J., observe: 'We believe there is no general custom by which this question can be at once decided. It may be the Dharmakarthas have no power to change custom ; it may be that they, or a majority of them, have a discretion to do so either arbitrarily or in accordance with what they honestly believe to be the wishes of the worshippers.'

7. In his evidence the 1st plaintiff stated that the plaintiff belonged to the Kamara community and that only members of that community are entitled to interfere in its management; that there are 18 houses in the street, the other houses being inhabited by members of other castes. The 1st plaintiff's evidence with reference to the custom upon which he relied was somewhat confused, but he appears to have stated that if the procession started it must pass through Kristnaswamy Covil Street, that the length of the route of the procession depended on the money available, but that the procession must pass through certain specified streets whether there was money or not, and that if money was not forthcoming, the temple must borrow for the purpose. He stated that if a large majority of the worshippers wished the route of the procession to be changed, the defendant must act according to mamool, and that even if the houses on both sides of the street fell down and no one lived in it the procession would still have to go up that street. Upon the 1st plaintiff's own statement of the custom upon which he relies it seems to me that the alleged custom is so unreasonable,--unreasonable, I mean, from the point of view of the community for whose benefit the institution was founded and the processions are conducted--that I should be prepared to hold that no such custom in fact exists. There is, however, other evidence as to the nature of the alleged custom, A Dharmakartha of a neighbouring temple was called as a witness on behalf of the plaintiffs. He stated that for the last 20 or 30 years, except when the processions were stopped on account of disputes, the procession had passed down the Krishnasami Covil Street. He also stated according to the learned Judge's note of his evidence, that the route of processions depends upon the wishes of the people living in the streets and the pleasure of the Dharmakartha, that processions generally keep the same route, and that it depends upon the wishes of the people through which the processions go. The witness mentioned the names of two other temples and stated that the processions in connection with these temples did not pass through the same streets they used to pass through. He also stated that the matter depended upon the wishes of the people--those living in the mamool streets and others.

8. The testimony of this witness is quite inconsistent with the evidence given by the 1st plaintiff. To my mind the 1st plaintiff's evidence is discredited by that given by his own witness--the neighbouring Dharmakartha. Without saying that the defendant's discretion in regard to the route of the procession is absolute (as the defendant puts his case in written statement), it seems to me that the custom as spoken to by the Dharmakartha witness is more reasonable and more probable. To say that a trustee in a case such as this has no discretion appears to me anomalous. It is not necessary to attempt to define the limits of his discretion or the principles upon which he should seek to exercise it. It is enough to say that, in my judgment, the plaintiffs have failed to establish a custom which absolutely precludes the defendant from the exercise of any discretion and that he failed to make out his case. In this view it is not necessary to consider the--to my mind--much more difficult question as to whether the right claimed by the plaintiffs is a right cognizable by a Civil Court. As this question, however, was fully argued before us, I propose to deal with it. I have come to the conclusion that the right claimed by the plain-tiffs is not one on which a Civil Court can adjudicate. The dividing line between the class of cases involving questions of religious ritual and usage of which a Civil Court can take cognizance and the class of cases involving questions of which it cannot, or at any rate will not, take cognizance is not very clearly defined. The strongest case in favour of the appellant's contention is the decision of this court in Venkatachalapati v. Subbarayadu I.L.R. 13 M.k 293. There a Smarta Brahman claimed the right to enter the inner shrine (where orthodox Brahmains usually made their offerings) of a certain temple. The committee of the temple refused to allow him to enter the inner shrine on the ground that he had married a widow contrary to the Hindu Sastras. In the course of his judgment Sir Muthusami Aiyer observed, 'The right which the appellant claimed in the plaint and which he asked the court to protect, was a right of access to the inner shrine or sanctum sanctorum of a Hindu temple for the purposes of religious worship, and the ground of claim was that prior to his marriage with a Hindu widow, he had that right, and that he did not since forfeit it by reason of such marriage. The question whether with reference to its perquisites, the right continued to exist after his marriage was one which related to the merits, and whatever might be the decision in regard to it, the right was, in its nature, one which the appellant was at liberty to assert as a citizen and a Brahman and which the courts were bound to adjudicate upon. It may be that an enquiry as to religion or caste, or as to the religious foundation for the excommunication pronounced by the chief priest of Smarta Brahmins, is indispensable to coming to a correct decision, but when the right claimed is asserted to be of a civil nature and which is within the cognizance of Civil Courts, they are bound to hold such enquiry as is ancillary to the exercise of the jurisdiction vested in them by law.' The Court directed findings to be returned on the following issues:

1. Whether the general custom of Brahmans worshipping or entitled to worship, in the temple mentioned in the plaint, continued to prohibit, at the date of the suit, marriage with a widow?

2. If so, whether, according to the usage of the temple mentioned in the plaint or according to the original and recognized intention of the foundation, regard being had to its nature and character as a religious and caste institution and to the customary mode of treating those who transgress general caste customs, and thereby lose or impair their caste status, those Brahmans who marry widows are excluded from the inner shrine of the temple by the original and recognized? trusts of the, institution.' In the case above referred to the right claimed was 'not an exclusive personal right, or a right of domestic or family worship, or a right of property which may be conceived to exist independently of caste or religion, but a joint right to be exercised in a religious institution conformably to caste usage to the extent recognized by it so as not to contravene the equal rights of other members of the caste who are similarly interested in the institution' (p. 299). The question for decision in that case was 'what was the recognized general usage of the caste...whether it was against his (the plaintiff's) marriage with a widow, and if so, whether a departure from that affected his caste status so as to deprive him of the right claimed' (p. 300). In that case the right claimed was one enjoyed by every Brahman, as a Brahman, in common with every member of the community. The question the court adjudicated upon was whether, according to the usage of the temple, a Brahman who married a widow disqualified himself for the enjoyment of this right. In the present case the plaintiff claims a personal right, not common to the community, which, he says, he is entitled to enjoy, in perpetuity on the ground of custom. The custom of which the court took cognizance in the case of Venkatachalapati v. Subtarayadu I.L.R. 13 M.k 293 was--not the plaintiff's right of access to the inner shrine (which is inherent in all Brahmans who have not become disqualified), but the general usage of the Brahmans which forbids marriage with a widow. The custom we are asked to take cognizance of in this case is a special custom under which the plaintiffs claim a special privilege not common to the community generally and not essential to the purposes of worship. The plaintiffs do not invoke the aid of the court in order that they may not be obstructed when they go to worship the goddess, but they ask the court to order that the goddess should be brought to them, because, by custom, they have acquired a personal right to require that this should be done. The plaintiffs' claim in the present case appears to me to be essentially different from the claim in the case reported in I.L.R. 13 M.k 293.

9. The view that the present suit comes within the class of cases which a civil court is not competent to adjudicate upon appears to be well supported by authority. In Special Appeal No. 94 of 1861 (Judgments of the Madras Sudder Court, 1861, page 152), the plaintiffs and defendants worshipped at the same temple but were members of different castes. The suit was brought to regulate the ritual of the temple service, one of the grounds of contention between the parties being whether the images should be taken out in procession. The question of taking out the images in procession, however, does not appear to have been raised in the special appeal, and the court declined to entertain the suit on the ground that no pecuniary considerations were involved and that the contests related purely to the constituents of religious worship. The only other case to which our attention has been directed in which that of an idol in procession was involved is a decision of Sir Charles Turner, C.J., and Sir Muthusamy Aiyar, J., reported in Subbaraya Gurukal v. Chellappa Mudali I.L.R. 4 M.k 315. But in that case the plaintiff was the Dharmakartha of the temple and entitled to maintain the suit by reason of the property in the idols being vested in him as a trustee. The right to perform the religious services of an idol is no doubt in a sense 'property,' and as such is partible (see the judgment of Sir Richard Couch in the case reported in Mitta Kunth Audhicarry v. Neerujun Audhicarry 14 B.L.R. 166 but in my judgment, the right set up by the plaintiffs in the present case cannot, without giving an altogether forced and unnatural meaning to the word, be described as a right of property. In the case reported in Striman Satagopa v. Krishna Tatachariyar and Anr. 1 M.H.C.R. 301 it was held by this court that a Hindu priest could not sue in respect of the withholding of religious observances due to his sacred rank, but unconnected with any special office held by him, although the non-performance of these observances might have caused him some ascertainable pecuniary loss. In the case reported in Sawgapabin Baslingapa v. Gangapabin Niranjapa and Ors. I.L.R. 2 B. 476 the plaintiffs set up an alleged hereditary right to take a cupola to a certain temple and place it upon the car of the idol. The court refused to entertain the suit on the ground that it was brought to vindicate the plaintiffs' right, not to an office but to a mere dignity unconnected with any fees, profits or emoluments. On the other hand it has been held by this court in the case reported in Vengamuthu v. Pandaveswara I.L.R. 6 M. 151 that a suit by a dancing girl whose offerings to the idol had been rejected by the priest on the ground that she had misconducted herself, and in a case reported in Srinivasa v. Tiruvengada I.L.R. 11 M.k 450 that a suit to establish the plaintiffs' right to present a crown and water to certain persons on certain festivals in a certain temple was cognizable by the Civil Courts. It will be observed that in both these cases the right claimed was a right to perform acts of worship in a temple. In the present case the right claimed is to have the object of worship brought to the plaintiffs. The distinction may seem fine, but it seems in Accordance with the general proposition laid down by Sir Charles Turner in the first of the two cases just referred to. The proposition is 'The members of a sect are entitled, subject to the rules made by the duly constituted authorities of the sect, to take part in the public worship of the sect, and if any of them is wrongfully prevented from so doing, he is entitled to seek from the Civil Courts such remedies as they can afford him.' In the case reported in Vasudev and Anr. v. Vamnaji and Ors. I.L.R. 5 B. 80, the court refused to entertain a suit by the committee of management of a Hindu temple to compel the hereditary priests of the temple to take out certain ornaments from the treasury and place them upon the god on such days as the committee might appoint on the ground that no question of the right to property or to an office was involved, whilst in the case reported in Narayan Vithe Parah v. Krishnaji Sadashiv I.L.R. 10 B.k 233 the court declined to take cognizance of a suit in which the plaintiffs set up the right to be the first to worship the village deity at certain festivals, and in the case reported in Karuppa v. Kolanthayan I.L.R. 7 M.k 91 this court refused to entertain a suit in which the plaintiffs set up a right based on usage to receive before others sacred ashes, &c.;, in certain pagodas on certain days.

10. On the other hand the Bombay High Court has held, Anandarv Bhikaji Phadke v. Shankar Daji Charya I.L.R. 7 B.k 323 that a suit by certain members of a particular caste in which the plaintiffs claimed that the members of their caste, in common with certain other castes, possessed the exclusive right of entry and worship in the sanctuary of a temple, was within the cognizance oil the Civil. Courts. The right set up in this case was the exclusive right of certain castes to worship in the sanctuary of a temple. No question of ritual was involved. The usage upon which the court adjudicated was an alleged caste usage. In the present case the right set up was not based upon caste usage and was not relied upon as a caste privilege. It was a right set by certain individuals which they claimed to enjoy not as members of the caste but as residents in a particular street.

11. In a case reported, Debendronath Mulliek v. Odit Churn Mullick I.L.R. 3 C. 390 it was held that a plaint which alleged a refusal to deliver up an idol whereby the person demanding it was prevented from performing his turn of worship on a specified date, disclosed a cause of action. The point was taken in the settlement of issues and does not seem to have been fully argued. The case is very shortly reported, but it would appear that by the conduct of the defendants, the plaintiffs were wholly deprived of their turn of worship. The present case cannot be put higher than that the plaintiffs have been deprived of certain facilities for worship which they had previously enjoyed.

12. In an unreported case decided by this court to which my learned colleague referred (Appeal No. 83 of 1895), the plaintiff had brought the right to certain dignities and emoluments and the contention that the honours and dignities were of a religious nature of which the Civil Courts could not take cognizance was overruled. In that case some of the rights claimed by the plaintiff undoubtedly possessed a money value. Others did not. But it was proved that since 1810 the latter had always been treated as a part and parcel of the same miras, and they appeared to be rights which were inseparable from the other rights. They had always been classed together, and they had been mortgaged, bought and sold together, and the courts were of opinion that the rights appertaining to the miras were one and indivisible. This being the ground of the decision, the case in no way supports the proposition that the Civil Courts are competent to adjudicate upon a claim such as that set up in the present case.

13. The appellants' Counsel relived strongly on the judgment of the Privy Council in Brown v. Cure &c; de Montrial L.R. 6. P.C. 157 and contended that the proposition laid down by the Judicial Committee with reference to the Roman Catholic Church in Canada was applicable to the present case. The proposition is as follows: * * * even if this church were to be regarded merely as a private and voluntary religious society resting only upon a consensual basis, Courts of Justice are still bound, when due complaint is made that a member of the society has been injured as to his rights in any matter of a mixed spiritual and temporal character, to enquire into laws or rules of the tribunal or authority which has inflicted the alleged injury.'

14. I do not think this proposition, which is very general in its terms and which was advanced in relation to ecclesiastical disputes in a Christian country, ought to be applied so as to affect the rules which the courts of this chantry have laid down with reference to the interference by the Civil Courts in relation to disputes connected with religious ceremonies or observances in this country.

15. To my mind the balance of authority supports the view that the present suit is not cognizable by a civil tribunal.

16. I think the suit was rightly dismissed and that this appeal ought to be dismissed with costs.

Davies, J.

17. The plaintiffs are residents of Krisrnaswami Covil Street, Black Town, and their case is that on all occasions but one when the goddess of the Kaliarnman Covil is carried out in procession, it has been the invariable practice for the idol to be taken through their street and stoppages made there in order that they may worship it. They allege that last year for the first time the defendant, who is the Dharmakartha of the temple, broke the practice by not taking the procession through their street, and they prayed for a mandatory injunction to compel him to do so in future and for damages. The defendant's answer was that he was not bound by the practice, and that he took the procession through a longer route which prevented its going through the plaintiffs' street in order to benefit more worshippers and thereby the temple. The learned Judge who tried the case held that the practice did not constitute a valid, custom binding on the temple authorities and dismissed the suit.

18. The plaintiffs appeal. Their evidence shows, and the defendant does not deny that the alleged practice has existed from time immemorial, and that, though in the years 1874 to 1878 the goddess was not taken in procession at all owing to temple disputes, whenever it has been taken, the customary route through the plaintiffs' street has never been departed from till last year. The plaintiffs accordingly claim to have established a right to worship, the goddess at their own door-steps on these occasions. Each plaintiff sets up an individual right as well as the collective right of the residents of the street generally, which observation I make in order to dispose of the objection taken to the suit with reference to Sections 30 and 539 of the C.P.C. The only questions that remain for determination are: (1) Whether the plaintiffs can sue in a Civil Court to establish the right they set up, and (2) if so, whether they have established the right.

19. On the first question the right of the plaintiffs to worship the goddess is not disputed and that this right of public worship, if infringed, is remediable in a civil court was held in Vengamuthn v. Pandaveswara I.L.R. 6 M. 151 where a dancing girl's offerings to the (sic) were rejected by the priest. In Subbaraya Gurukal v. Chellappa Mudali I.L.R. 4 M. 315 a case which in its facts is on all fours with this, it was held that a Hindu idol is a 'property,' and the right to deal with such property is a right cognizable by the Civil Courts. A similar view was taken by Mr. Justice Pontifex in Debendronath Mullick v. Odit Churn Mullick I.L.R. 3 C. 390. The right to worship an idol at a particular place or standpoint was recognized as enforceable by a civil court in the cases reported at Anandrav Bhikaji Phadke v. Shanker Daji Charya I.L.R. 7 B. 323 and Venkatachalapati v. Subbarayadu I.L.R. 13 M.k 293. No decision to the contrary were cited at the Bar. All the cases in which it has been held that the civil courts had no jurisdiction were cases in which only the mode of worship was in question, that is, questions relating to the ritual or to precedence and other mere dignities or honours claimed in the exercise of the right of worship. So that I take it there can be no doubt of the plaintiffs' right of suit in this court.

20. The other question is whether they have established the right to worship the goddess in their own street in front of their houses where it was taken out in procession. The fact that they have invariably done so hitherto within living memory is itself sufficient in my opinion, to establish the right. Mamool reigns supreme in this country, and it lies on any one who wishes to change the mamool to show good and sufficient reason for so doing especially in a matter affecting the route of an idol's procession, disputes regarding which are a fruitful source of rioting and bloodshed. The defendant has not shown that he had any authority to divert the idol's procession from its ordinary route. The plea that more profit is got by taking the goddess elsewhere is a plea of expediency which cannot avail against the vested right of the plaintiffs. You cannot rob Peter to pay Paul. There can, however, be no objection to the defendant taking the idol to new places so long as he takes it to the old ones. I should therefore, reverse the decree appealed against and issue a mandatory injunction to the defendant as prayed for by the plaintiffs, viz., that whenever the goddess of the Kaliamman Covil is taken out in procession, the procession must pass through Krisrnaswami Covil Street, except on the three days, 7th, 8th and 9th of the Brahmotsavam festival, which days ought admittedly to be excluded. I would also cast the defendant in nominal damages of Rs. 20 and direct him to pay the plaintiffs' costs throughout.

[Under Section 33 of the Letters Patent the appeal is dismissed with costs].


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