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Vanamamalai Bhashyakar Vs. Krishnaswami Thathachariar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported in(1906)16MLJ150
AppellantVanamamalai Bhashyakar;krishnaswami Thathachariar and ors.
RespondentKrishnaswami Thathachariar and ors.;narasimha Thathachariar and ors.
Excerpt:
.....of the said shrine of manavala mahamuni subject to 2nd to 6th defendants' right to worship the idol of manavala mahamuni in the said shrine and to conduct all ceremonies and festivals in the said shrine including the annual tirunakshatram festival according to the usage of the shrine; and it is the contention of the defendants that being vadagalais themselves, the dharmakartas have intentionally and in breach of their duty failed to carry out the established worship of their tengalai manavala mahamuni deity, in omitting to carry the idol in procession on certain specified occasions. this finding is objected to on the ground that it is based upon what was the practice before 1852, the copper idol having disappeared in that year being thrown into a well and recovered and restored to..........ran as follows: 'my finding accordingly is that according to the long usage and custom of the temple, manavala mahamuni a parathantra bakta is entitled to a visit from devaraja swarni on the evening of his sathumorai day and to a procession through the prakarams with devaraja to the latter's shrine as far as the foot of the hill and back to his shrine after devaraja is taken to his abode in case there should be ubayakars forthcoming, that is entitled, if there are no ubayakars, to be taken in procession alone on the morning of that day to devaraja's shrine and back to his own after receiving due honors, that he is entitled to be taken in procession to devaraja's shrine on the 1st day of the pagalpathu, and to remain there for 10 days, that is entitled to be taken to his own shrine.....
Judgment:

1. Before disposing of these second appeals, we will ask the District Judge to return a finding on the merits of the 7th issue, (which was as to whether the idol of Manavalamamuni was entitled to any procession) which the Munsif found in favour of the plaintiffs. Fresh evidence may be taken.

2. The finding should be submitted within 5 (five) weeks from this date. Ten days will be allowed for filing objections.

3. In compliance with the above order, the District Judge submitted a finding which ran as follows: 'My finding accordingly is that according to the long usage and custom of the temple, Manavala Mahamuni a Parathantra Bakta is entitled to a visit from Devaraja Swarni on the evening of his Sathumorai day and to a procession through the prakarams with Devaraja to the latter's shrine as far as the foot of the hill and back to his shrine after Devaraja is taken to his abode in case there should be Ubayakars forthcoming, that is entitled, if there are no Ubayakars, to be taken in procession alone on the morning of that day to Devaraja's shrine and back to his own after receiving due honors, that he is entitled to be taken in procession to Devaraja's shrine on the 1st day of the Pagalpathu, and to remain there for 10 days, that is entitled to be taken to his own shrine in the morning and back to Devaraja's in the evening, should his Thirunakshatram fall on any day during this period, that he is entitled to be taken in. procession to the Kottai Mantapam and back to his shrine after receiving honours on all the 10 nights of the Rapathu festival and that he is not entitled to any other street or prakaram procession independently of Devaraja Swami. It is unnecessary to state that this finding does not touch his rights to processions within his own shrine or to the pandal in front of his shrine during the first 9 days and 11th day of his Tirunakshatram festival when he is said to be taken to and fro also within the pandal as these are matters outside the scope of the enquiry I have been called upon to make. I make express mention of these facts because there is some evidence let in as t) what is being done during the first 9 days and the 11th day of the festival and Manavala Mahamuni's shrine being inside Devaraja's temple, it might perhaps be contended that my finding embraced the question of procession in his own shrine also. I would respectfully suggest with a view to prevent future disputes that clear and strict rules be embodied in the decree as to how the trustees should act in the matter of the management of festivals, etc., of the Manavala Mahamuni's shrine, since their right to control and manage it has been upheld instead of leaving the matter to their unfettered discretion and thereby giving opportunities for the Archakas and Paricharakas to complain rightly or wrongly every now and then.' The District Judge had also found that the idol was not carried in procession after 1852 except for the short period between 1892 and 1897.

4. These second appeals coming on for final hearing, the Court delivered the following.

Moore J.

5. There is a prayer in the plaint 'that it be declared that defendants 2 to 6 are not entitled to carry the idol of Manavala Mahamuni in procession either in the prakaram of Sri Devaraja Swami or outside the prakaram during the Tirunakshatram Othsavam or otherwise, and that defendants 2 to 6 be restrained from carrying the said idol in procession either during the approaching Thirunakshatram Othsavam to be held from the 21st instant or at any other time.' The following is the issue (7th) framed with the view of adjudicating on the question whether the plaintiffs were entitled to this declaration or not : - 'Is the idol of Manavala Mahamuni entitled to procession in the prakarams of Devaraja Swami or in the street during the Thirunakshatram festival or at any other time.' Mr. A.C. Tate, the District Judge, before whom the appeal in this case came on in the first instance dealt with the 3rd, 7th and 8th issues in paragraphs 14 to 17 of his judgment. He failed, however, to record any clear and distinct finding on the 7th issue and accordingly the Bench before whom this Second Appeal came when first posted for hearing called on him to 'return a finding on the merits of the 7th issue which the District Munsif found in favour of the plaintiffs.' Fresh evidence was allowed to be taken. The District Judge, Mr. T.M. Swaminadha Aiyar, on receipt of this order went fully into the question referred to him and has sent up his finding here. In paragraph 18 of this finding he has set out in full detail the several processions, ceremonials, &c.;, to which it had, in his opinion, been established that Manavala Mahamuni was entitled. It appears to me that the 7th issue has been framed and the enquiry of the District Judge, on that issue having been sent down to him for a fresh finding, has been held under a complete misapprehension of the powers of a Civil Court. It cannot of course be seriously maintained for a moment that any Court can adjudicate as to the rights, processions, ceremonies, &c.;, to which any shrine or idol may be entitled. The present suit is one between the Dharmakartas and the Archakas and Paricharakas of the Devaraja Swami temple at Conjeeveram and all that the courts can do in the suit is to adjudicate as to their respective rights in so far as they arise for decision in the case. The finding of the District Judge, Mr. A.C. Tate, on the 10th issue as set out in paragraph 19 of his judgment is embodied in his decree drawn up in Appeal Suit No. 191 of 1900 presented to him. Through some mistake a separate decree has been drawn up in Appeal Suit No. 190 of 1900 presented to Mr. A.C. Tate. This of course should not have been done. There should have been only one decree in which should have been embodied all the directions passed by the District Judge in disposing of all the appeals presented to him against the decree of the District Munsif in O.S. No. 744 of 1897. In this decree in Appeal Suit No. 191 of 1900 Mr. A.C. Tate modifies the decree of the District Munsif to a very considerable extent and the effect of the District Judge's decree is to give the plaintiffs the relief that they asked for in the plaint except in so far as the prayer in the last paragraph 'that it be declared that the defendants 2 to 6 are not entitled to carry the idol of Manavala Mahamuni in procession either in the prakaram of Sri Devaraja Swami or outside the prakaram during the Tnirunakshatram Othsavam or otherwise and that the 2 to 6 defendants be restrained from carrying the said idol in procession either during the approaching Thirunakshatram Othsavam to be held from the 21st instant or at any other time' is concerned. I am of opinion that this decree should be upheld and that all these appeals should be dismissed. Mr. A.C. Tate in his decree declares that the plaintiffs as Dharmakartas are entitled to make all arrangements for putting and taking down pandals in Manavala Mahamuni's shrine, that the defendants are not entitled to act independently of the plaintiffs in the matter of putting up and taking down such pandals and that the defendants should be restrained from interfering with the plaintiffs in making such arrangements independently of the defendants if they consider it advisable to do so. It is admitted that the plaintiffs are the Dharmakartas of the temple and that, as such, all the rights and duties connected with the management of the temple and the shrines connected therewith devolve on them. Such being the case, it follows, as a matter of course, that the plaintiffs are entitled to the declarations just set out. The further declarations prayed for in the plaint and allowed to some extent by the District Munsif as set out in his decree but disallowed by the District Judge relate to the carrying of the idol of Manavala Mahamuni in procession either inside or outside the prakaram of Sri Devaraja Swami during the Tirunakshatram Othasavam. The District Judge, Mr. A.C. Tate has, I think, rightly refused to give any declaration as to these processions. The question as to the processions in which this so-called idol should be carried and the manner in which these processions should be conducted is not one which in reality arises between the present plaintiffs and defendants. The persons mainly interested in these processions and other ceremonials are the worshippers at the shrine of Manavala Mahamuni and it is impossible to hold that the defendants in any way represent these worshippers. If the worshippers or any of them feel themselves aggrieved by the manner in which the processions connected with this shrine or so-called idol are carried out by the Dharmakartas they have their remedy under Act XX of 1863. These are questions that cannot be decided in the present suit between the Dharmakartas and certain temple servants.

6. These three appeals are dismissed but there will be' ho orders as to costs as the Dharmakartas and the defendants seem equally to blame for these unfortunate and foolish disputes which have worked so much injury to the temple for many years past. There will be no orders as to the Memorandum of Objections.

Sankaran Nair, J.

In S.A. No. 137 of 1902.

7. Within the precincts of the Davaraja Swami temple at Conjeevaram, there are various smaller shrines, one of them devoted to the worship of Manavala Mahamuni, a Tengalai Saint. The plaintiffs are Vadagalais and Dharmakartas of the Devaraja Swami Temple, the defendants being Tengalais and Archakas and Paricharakas of the Manavala Mahamuni shrine. As might be excepted, the parties have been disputing about their rights at least ever since 1852. The rights of the defendants to the Archaka and Paricharaka miras, and m that capacity to the custody of the idol and of the shrine of the Manavala Mahamuni, to perform the pooja according to custom, to receive the daily and special offerings from the main temple have been established as against the plaintiffs the Dharmakarthas in O.S. No. 120 of 1852 (Exhibit II) and they have been accordingly recovering from the defendants through Courts the allowances due to them for the performance of the annual Tirunakshatram festival of Manavala Mahamuni (Exhibits XXV, XXIX and XLV). The Dharma-kartas appear to have unsuccessfully claimed possession of the idol in a subsequent suit in 1872 (Exhibits XI, XII, XIII).

8. The decree passed by the District Mansif and confirmed by the lower appellate Court runs thus-

This Court doth declare that plaintiffs as trustees of Sri Devaraja Swami temple of Conjeevaram and of the shrine of Manavala Mahamuni situate in the said temple, are entitled to the management and superintendence of the said shrine of Manavala Mahamuni subject to 2nd to 6th defendants' right to worship the idol of Manavala Mahamuni in the said shrine and to conduct all ceremonies and festivals in the said shrine including the annual Tirunakshatram festival according to the usage of the shrine; and this Court doth further declare that the defendants 2 to 6 have no right to carry the idol of Manavala Mahamuni in procession outside its own shrine, that is to say, either in the prakaram of Devaraja Swami Temple or outside the said prakaram, during the annual Tirunakshatram festival, or at any other time; and this Court doth order and decree that the defendants 2 to 6 be and they hereby are restrained from carrying the idol of Manavala Mahamuni in procession outside its own shrine, i.e., either in the prakaram of Devaraja Swami Temple or outside the said prakaram, during the annual Tirunakshatram festival or otherwise : and this Court doth further order and decree that the plaintiffs' suit in other respects be, and same hereby is, dismissed and that the parties do bear their costs.

9. The Dharmakartas are undoubtedly entitled to the sole management and to the superintendence of all shrines within the temple precincts and of all ceremonies or festivals which have to be carried out in accordance with established usage; and it is the contention of the defendants that being Vadagalais themselves, the Dharmakartas have intentionally and in breach of their duty failed to carry out the established worship of their Tengalai Manavala Mahamuni deity, in omitting to carry the idol in procession on certain specified occasions. This was the question raised by the issues and dealt with in the judgments of the lower courts and argued before Mr. Justice Divies and myself. In his first judgment; the District Judge found that the idol of Manavala Mahamuni was carried in procession only from 1892 to 1897 and this would not create a prescriptive right. It appeared to me that -the question was not whether any right was acquired by prescription. The proper persons to carry out the processions being the. Dharmakartas themselves, I considered it very doubtful whether they could contend that, if the procession of the idol formed part of the public worship in the temple or was in accordance with established usage, a breach of crust on their part in not carrying out such procession for some time could justify them in really altering the worship.

10. The lower Courts had also decided that the question as to the procession was res judicata. Here again it appeared to me that two considerations were ignored. The Dharmakartas themselves, and not the Archakas, represented the idol. It was doubtful whether any decision between these two alone could be binding as between the Vadagalais or Tengalais or any other persons interested as to the form or mode of worship in the temple.

11. There was also another question that had to be considered. The question whether certain procession had to be carried out in a temple as a part of the worship therein was not a question of a civil, but of a religious nature, and it has to be decided with reference to considerations and arguments with which our Civil Courts are ordinarily unfit to deal; and a decision therefore of such a question by a Civil Court for the purpose of granting any relief can hardly be said to be a decision of a competent Court so as to bind the parties in subsequent suits based on a different cause of action or for a different relief. But at the same time to decide otherwise would involve serious consequences.

12. Further, to decide the question of res judicata it was also necessary to ascertain fully the rights asserted and proved in this case on behalf of the Tengalai community to see how far those rights have been adjudicated upon.

13. For these reasons, I agreed with Mr. Justice Davies in holding that the District Judge should be directed to ascertain the material facts and return a finding on the 7th issue.

14. The Judge has now returned a finding which shows on what occasions and through what routes the idol ought to be taken out in procession. He practically finds in favour of the defendants as far as the processions within the temple walls are concerned. This finding is objected to on the ground that it is based upon what was the practice before 1852, the copper idol having disappeared in that year being thrown into a well and recovered and restored to its proper place only in 1875, the processions themselves having been resumed much later and not having continued for a sufficiently long period to confer a right by prescription.

15. I have already stated that it is very doubtful whether this is any right to be lost or acquired by prescription. The question simply being what is the established usage in the temple, or in the absence of any such usage, what is the worship prescribed by the Shastras. Absence of any procession for a long period of time may be evidence against such usage. It may also be strong evidence, perhaps conclusive also, of its discontinuance or, cessation if the usage had existed before; for, it is now well established that a usage however well established, may be discontinued by the community interested m the trust or in the continuance of the usage. But no such discontinuance can be implied where, as here, the conduct of the Dharmakartas was challenged immediately as a breach of trust, and the community interested never acquiesced in it, but every effort was being made by them to restore the old practice. 'Whether the Dharmakartas at any rate, can be allowed to set up their own breach of trust for a long time to justify its continuance may well be doubted. These questions and the pleas of res judicata with reference to the observations already made by me have not been fully argued before us and without hearing further arguments I feel some hesitation in coming to any conclusion.

16. But the second appeal can be decided on a ground raised now for the first time by Mr. V. Krishnaswami Aiyar for the respondents. In the peculiar circumstances of this case the question has been allowed to be raised at this stage.

17. It is contended that whether the idol of Manavala Mahamuni ought to be taken in procession or not, it lies with the Dharmakartas to carry out such processions0; the defendants have nothing to do with such processions, except as members of the Tengalai class, and the prayer in the plaint is confined to an injunction to restrain the defendants from interfering with the plaintiff's right as Dharmakartas to see that the worship is carried out, and therefore it is unnecessary to decide those questions in this suit which is brought to enforce the claims of the Dharmakartas as such against the defendants Who are only temple servants. It is also urged that if the Dharmakartas are not carrying out the worship in accordance with established usage, the defendants or other persons interested must proceed under the Religious Endowments Act or Section 539, Civil Procedure Code, and that, in this case, it is unnecessary to decide and it ought not to be decided, whether the idol ought to be carried out in processions, or when and on what occasions; and it is also to be noticed that the Courts below have not declared the mode of worship by prescribing the occasions and the routes of the processions and only declare the plaintiff's rights as Dharmakartas to superintend all the affairs and direct the defendants not to interfere in such management. This contention appears very reasonable. Otherwise, temple management will practically become impossible, and this is also the only conclusion to be drawn from the unity of representation in the trustees themselves of the conflicting interests which I have already referred to in connection with the plea of res judicata and the acquisition of right by prescription. The decrees of the Courts below may be supported on this ground and the second appeal is therefore dismissed. There will be no order as to costs.

In S.A. Nos. 138 and 269 of 1902.

18. For the reasons given in my Judgment in S.A. No. 137 of 1902, these second appeals are also dismissed without costs.


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