T.N. Singaravelu, J.
1. This is an appeal against the order of the learned single Judge dismissing W.P. No. 4682 of 1980 filed by the appellant, who is the Pandara Sannathi and Adeena-karthar of Thiruvavaduthurai Adheenam in Thanjavur District. The Head of Tiruvavaduthurai Mutt, hereinafter referred to as the 'Head of the Mutt', filed two writ petitions, W.P. No. 4682 of 1980 for a writ of prohibition and, W.P. No. 4683 of 1980 for quashing the impugned notice against the State Government represented by the Secretary and Commissioner to Government for Religious Endowment, first respondent herein. The appellant is the Pandara Sannathi and Adheenawartha of the Mutt, which is a well known Saivite Religious Institution, recognised as a religious institution entitled to protection guaranteed under Article 26 of the Constitution of India. He has stated that as the religious Head and Preceptor he has an absolute right and freedom to initiate, disciples, who are called 'Thambirans', under him and to nominate any one of them as his successor in accordance with the usage and custom of the institution and that the said power of nomination of his Junior is a personal right and part and parcel of his exclusive religious function. Since the Head of the Mutt has now become old, he has nominated a successor as the Junior to succeed him. The Junior was duly appointed and ordained on 6th August, 1980, accompanied by the usual rituals and conducting of 'Acharya Abishekham'. According to the custom and usage of the Mutt, the Junior must be a celibate and it is an office predominantly religious in character. While so, the first respondent through the Commissioner, Hindu Religious and Charitable Endowments Department, hereinafter referred to as the 'Commissioner', issued a notice on 8th August, 1980, to the Head of the Mutt questioning the appointment of the successor and complaining that the Junior was not duly qualified and that he is not a fit person to be appointed to that high office. In the impugned notice the Commissioner demanded an explanation from the Head of the Mutt and asked him to show cause why disciplinary action should not be taken against him for appointment of such an ill-deserving person. The Head of the Mutt sent a reply on 13th August, 1980, denying the allegations against the successor and stating that he is a duly qualified man for the post and that the Commissioner cannot question the appointment since it is purely religious in character. The Head of the Mutt then followed it up by filing the two writ petitions stated above, one for prohibition and the other for quashing the notice.
2. The learned single Judge held that the choice of a successor (Junior) is purely an administrative function and not a religious function and that none of the fundamental rights under Article 26 of the Constitution has been violated. Now, the vital point for consideration in this writ appeal is whether the nomination and appointment of a successor by the Head of the Mutt is a religious function as contended by the appellant or is purely a secular act as urged by the respondents.
3. To appreciate this controversy, it is necessary to note the definition of the 'Math' as defined in Section 6(13) of the Hindu Religious and Charitable Endowment Act, XXII of 1959, hereinafter referred to as the 'Act' for the sake of brevity. Section 6, Sub-section (13) reads as follows:
6(13). 'Math' means a Hindu Religious institution with properties attached thereto and presided over by a person, the succession to whose office devolves in accordance with the direction of the founder of the institution or is regulated by usage and-
(i) Whose duty it is to engage himself in imparting religious instruction or rendering spiritual service; or
(ii) Who exercises or claims to exercise spiritual headship over a body of disciples; and includes places of religious worship or instruction which are appurtenant to the institution.
4. It is common ground that the appellant squarely comes within the definition of 'Math' as per the Act and this is not in controversy. In Gnana Sambanda Pandara Sannadhi v. Kandasami Thambiran I.L.R.(1887) Mad. 375, it was held that in legal parlance Math connotes a monastic institution presided over by a superior and established and maintained for the use and benefit of ascetics belonging to a particular order who generally are disciples or co-disciples of the superior'. Some spiritual leaders of South India, who were actuated by a desire to disseminate religious knowledge and promote religious charities have established maths in various places and in Tamil Nadu they are often referred by the term 'Adheenams', and their heads as 'Adheenakarthars.' The founders of these Maths gather round them a number of disciples whom they initiate into the tenets of their order for the propagation of religious knowledge which includes the doctrine of a particular cult, and this is done by maintenance of a competent line of teachers. Grants of property came to be made by pious persons, for the use and benefit of the fraternity and in this process the Maths were constituted. It has been well-settled by a long line of decisions of the High Court and the Supreme Court that the primary purpose of a math is to encourage and foster spiritual learning by maintaining a competent line of teachers who impart religious instructions to the disciples. The status of a mahant is described by the Privy Council in Ram Prakash Das v. Anand , thus:
The Mahant is the head of the institution--he manages the property of the institution--he administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself.
In these institutions, ordinarily the custom to entitle a 'chela' to succeed to the gadi or headship or peetam is that he must be appointed or nominated by the Mahant in office during his lifetime. The Privy Council in Greedhari Dass v. Nando Kishore (1867) 11 M.I.A. 405 observed that, the only law as to these Mahants and their offices, functions and duties is to be found in custom and practice which is to be proved by testimony.
5. Thus, the law on the question of succession to the office of the Head of the. Mutt is that if the founder-grantor has laid down any particular rule of succession, that has to be given effect to. In Thiruvambala v. Chinna I.L.R.(1915) Mad. 177 : 30 M.L.J. 274 : 4 L.W. 306, it has been held the practice is for the Pandara Sannadhi or Head of the Mutt to nominate and ordain a Junior Pandara Sannadhi who acts as a co-adjutor during the lifetime of the senior and succeeds him after his death and the right thus acquired by the Junior Mahant cannot be deprived, except for grave cause. Thus, the right of making an appointment is appurtenant to the office of the Mahant and the duty of the Head of the Mutt is to impart spiritual instruction and to propagate Hindu religion.
6. Under Article 26 of the Constitution of India, subject to public order, morality and health, every religious denomination or any section thereof shall have the right:
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion.
7. In Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt : 1SCR1005 , the Supreme Court has declared that under Article 26(b), a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. In Panachand Gandhi v. State of Bombay : 1SCR1055 , the Supreme Court has further held that in regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislature can take away, though as regards administration of property, it has undoubtedly the right to administer such property but only in accordance with law. In Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and Ors. : 1SCR561 , the same principle as laid down in Commissioner of Hindu Religious Endowments, Madras v. Sirur Mutt : 1SCR1005 , is reaffirmed and it is not correct to say that religion is nothing else but a doctrine or belief and that it includes rituals and observances and modes of worship which are integral parts of religion.
8. In a later case reported in Mahalinga Thambiran v. Arulnundi Thambiran : 2SCR74 , the Supreme Court observed that the succession to the office of Mahant or Head of a Mutt is to be regulated by the custom of the particular Mutt and that the power of nomination is a concept pertaining to the law of Hindu Religious Endowments. In that case, a controversy arose whether the Headship of the Mutt was an office or a status in law and the Supreme Court stated that it is a well-known custom in several Mutts for the Heads to nominate their successors and that the Junior Heads so nominated form a class by themselves, and as they stand in special and peculiar relationship with the senior Heads, the custom and usage will decide the same. The Supreme Court approved the decision in the earlier Madras case reported in Gnana Sambanda Pandara Sannadhi v. Kandaswami Thambiran I.L.R.(1887) M. 375 and observed thus:
By appointment as Junior, the Thambiran became a spiritual brother or a brotherly companion and by both the senior who appoints and the junior who is appointed belonging to the same Adheenam, they were associates in holiness.
The Supreme Court further held that the fact of a person being legally nominated a Junior and the capacity to succeed to the Head is an incident of that status and it was further held that the status, when created by a nomination, cannot be withdrawn or cancelled at the mere will of the parties, unless in accordance with the law. Thus, the position is that the Junior once nominated cannot be removed even by the Head of the Mutt except for a good and. valid cause. The observations of Seshagiri Ayyar, J., in Tiruvambala Desikar v. Chinna Pandaram 1915 30 M.L.J. 274 : I.L.R. (1915) Mad. 177, were quoted with approval and it was held by the Supreme Court that the Head of the Mutt is entitled to appoint a Junior Pandarasannadhi, that this Junior has a recognised status, that he is entitled to succeed to the headship if he survives the appointer,...that for good cause shown he can be removed, and that it is not open even to the head of the mutt to dismiss him arbitrarily.
9. The latest case on this subject is the one reported in Krishna Singh v. Mathura Ahir A.I.R. 1980 S.C. 707, wherein the Supreme Court observed that a math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult of religious fraternity and of the manager of the secular properties of the institution of the math. It was further observed that the property belonging to a math is, in fact; attached to the office of the Mahant and passes by inheritance. The Supreme Court then went on to say that the law is well-settled that succession to mahant-ship of a math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. Thus, the mahant-ship descends from Guru to Chela, i.e., the existing mahant alone appoints his successor, and the general rule is that the mahants having a common origin acknowledge one of the members as a Head, who is for some reason pre-eminent.
10. From these decided cases on this subject, it is clear that the choice of a successor is a religious function of the Head of the Mutt and it can never be construed as a purely administrative function. So far as the Mutt in question is concerned, the nominee has to undergo a rigorous religious ritual and observe celibacy and he should not have been previously married also. It is not disputed that certain elaborate rituals are conducted for the ordainment of a Junior Head and, in the instant base, they have been performed on 6th August, 1980, and the appellant has nominated his spiritual successor, who is known as Junior Pandarasannadhi. Section 105(b) of the Act clearly states that nothing in this Act shall authorise any interference with the1 religious and spiritual functions of the Head of a math including those relating to the imparting of, religious instruction or the rendering of spiritual service. In the Act, a clear-cut distinction is maintained throughout between the acts by the Trustees in administering the endowed1 properties and the functions of the Head of the Mutt as is apparent from the provisions of Sections 23 and 105(b) of the Act.
11. In the light of these decided cases and having regard to the usage and custom of the Mutt, we are unable to agree that the choice of a successor to the Headship of the Mutt is an administrative function, Status is something apart from and beyond its incidents. The fact of a person being legally nominated as Junior having a peculiar relationship with the Senior is status and the capacity to succeed is an incident of that status. Since the basic purpose and feature of nomination is designed to perpetuate a line of Acharyas to function as Preceptor in a wholly spiritual brotherhood and associate in holiness, the installation ceremonies and the management of properties are only incidental and merely the effect of the choice or the nomination which is the prerogative of the Head of the Mutt. Section 23 of the Act merely empowers the Commissioner with supervisory jurisdiction to supervise the mundane and secular administration of the endowed properties. In other words, in the matter of choice or succession to the office, it shall be only according to the usage or direction of the founder and the jurisdiction of the Commissioner is excluded (from the purview of the Act.
12. Learned Advocate-General argued that the respondents are not questioning the appointment of the successor, but they are only questioning or disputing the qualifications of the Junior, who has since been appointed. As already stated, the respondents are not empowered under the provisions of the Act to probe into the qualifications of the successor. As against this it is submitted on behalf of the appellant (Head of the Mutt) that the successor (Junior) is fully qualified and a most deserving person with religious bent of mind and a staunch disciple of the cult of the Mutt. If, as contended by the respondents, the Junior suffers any disqualification, then there is ample provision under the Act to file a suit for his removal after proving the alleged disqualifications--Vide Section 59 of the Act. Under this section, even a worshipper or a group of worshippers can file a suit stating that the Head of the Mutt is disqualified. But, it does not mean that the Government or the Commissioner can question the very appointment of a successor and till now, there is no precedent for any such interference from outside authorities. As laid down in Mahalinga Thambiran v. Arulnandi Thambiran : 2SCR74 , stated supra, when once the Junior is appointed, even the Senior cannot remove him unless for very valid and good cause. In the instant case, the Junior has been appointed and he has undergone the investiture ceremony and is now the Junior Head of the Mutt from 6th August, 1980. The impugned notice issued by the Commissioner was issued on 8th August, 1980, pointing out that there were complaints from certain quarters that the Junior Head was not a fit or deserving person. As already stated, it is clear that it is not open to the Commissioner, who is the Head of the Department to question the nomination under a threat of disciplinary action. The remedy is found only in Section 59 of the Act to file a suit for the removal of the Trustee of the Mutt on any one of the grounds mentioned therein. If the right of interference on the question of succession is recognized as a matter of routine, then no Head of the Mutt can ever appoint a successor, which is an exclusive personal right of the Head of the Mutt. It was also submitted at the Bar that there is no precedent in the history of the Mutts in South India where the Government has questioned the nomination of the Junior on the ground that there are some complaints about his qualifications. This is a matter exclusively within the province of the Head of the Mutt and the Act, as it is, does not enable the Commissioner to question the appointment by means of departmental action.
13. Section 23 of course, gives vast powers to the Commissioner in respect of the administration of all temples and all religious endowments and he has a general superintendence and control. But, it is well-known that Section 23 does not apply to Mutts for which a separate Chapter, viz., Chapter IV is provided in the Act. In other words, the definition of 'Math' is different from temples and religious endowments. The first respondent is quite conscious of this lacuna in the Act for the control and supervision of the Heads of Mutts and that is why an amendment is now passed by the State Legislature and notified in the Gazette and it is pending assent. Further, Section 23 of the Act is not applicable to the religious activities of Mutts and therefore the respondents have no jurisdiction to question the choice of a successor of the Mutt.
14. Learned Advocate-General submitted, as already pointed out, that the respondents are not questioning the appointment of a successor, but that under the impugned notice, the respondents called for the remarks of the Head of the Mutt with reference to the successor. But, a close reading of the impugned notice discloses that it is not a mere innocuous fact-finding notice or letter calling for remarks. The tenor and the allegations therein are very serious in nature and going to the very root and it savours of a show-cause notice preceding the taking of disciplinary action against the Head of the Mutt. The operative portion of the notice in the last paragraph clearly demands an explanation from the 'Adheenakarthar' as to why legal and disciplinary action should not be taken against him for having appointed an 'unsuitable' person to the office. What is more, just 5 days' time was granted to the Adheenakarthar to submit his explanation. I have already pointed out that the investiture ceremony of the Junior Head after the rituals and the Acharya Abishekam had taken place on 6th August, 1980, and this notice threatening action was issued by the Commissioner on 8th August, 1980. In this notice, the Commissioner had clearly declared that the appointment of the individual (successor) was improper and wrong and that it is not in the interests of the Mutt. What is more, it is recited therein that the appointment of the Junior was also likely to lead to public agitation and litigation and therefore, they had to intervene.
15. It was strenuously argued on behalf of the appellant that the Commissioner has predetermined the matter in issue regarding the qualification of the Junior and that the respondents had jumped to the conclusion with a bias and without any material or enquiry whatsoever. Be that as it may, it is clear from the scheme of the Act that there is no provision therein to question the nomination or the choice of a successor to the Head of the Mutt and that, as laid down by the various decisions stated supra, it has always been governed by the usage and custom of the Mutt. The religious and the spiritual functions of a Madathipathi in initiating and ordaining Thambirans and nominating one of them as his Junior and successor have been recognised by the Courts of law as early as in Gnana Sambanda Pandara Sannadhi v. Kandasami Thambiran I.L.R.(1887) Mad. 375. The entire ceremony of initiation and investiture is wholly religious and spiritual and no part of it is secular or administrative. Section 105(b) of the Act affords protection to the Mutts in respect of religious and spiritual functions which obviously include nomination and customary ceremonies or ordainment. The secular functions are only incidental to the office. The result is, the impugned notice issued by the second respondent is without legal authority and it tantamounts to interference with the religious practice of the institution. We are, therefore, unable to uphold the view of the learned single Judge and consequently, a writ of certiorari will be the proper writ to be issued in this case and the same is hereby issued quashing this impugned notice, dated 8th August, 1980, to the Head of the Mutt, as without jurisdiction issued by the second respondent Commissioner and devoid of legal authority.
16. Consequently, the writ appeal is allowed and the rule nisi is made absolute. There will be no order as to costs.