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Ko. KA. Bashikar and anr. Vs. Thandrinatha Srinivasa Thathachariar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Trust and Societies
CourtChennai
Decided On
Judge
Reported inAIR1927Mad551; 102Ind.Cas.328; (1927)52MLJ541
AppellantKo. KA. Bashikar and anr.
RespondentThandrinatha Srinivasa Thathachariar and ors.
Cases ReferredThambiran v. Chandra Sahara Dikshitor
Excerpt:
civil procedure code (act v of 1908), section 92 - religious endowments act (xx of 1863), section 11,--suit by individuals to enforce personal right of worship--allegation of general breach of trust against trustee, effect of--maintainability of suit without sanction of advocate-general or leave of court. - kumaraswami sastri, j.1. plaintiffs are the appellants. they are thengalai vaishnava brahmins. the respondents belong to the vadagalai vishnava sect and are the dharmakarthas of the devarajaswami temple in conjeevaram. in the devarajaswami temple there is a shrine of manavala mahamuni a saint, who is held in very great veneration by the thengalai sect but whom the vadagalais do not worship. an utsawam is performed in honour of manavala mahamuni which falls in the month of october or november and lasts for about 10 days. this shrine is within the devarajaswami temple and is enclosed by walls. there is a gateway by which worshippers obtain access to the shrine and outside this gate is the prakaram of the temple. the case for the plaintiffs is that during the festivals a pandal is to be put.....
Judgment:

Kumaraswami Sastri, J.

1. Plaintiffs are the appellants. They are Thengalai Vaishnava Brahmins. The respondents belong to the Vadagalai Vishnava sect and are the dharmakarthas of the Devarajaswami temple in Conjeevaram. In the Devarajaswami temple there is a shrine of Manavala Mahamuni a saint, who is held in very great veneration by the Thengalai sect but whom the Vadagalais do not worship. An utsawam is performed in honour of Manavala Mahamuni which falls in the month of October or November and lasts for about 10 days. This shrine is within the Devarajaswami temple and is enclosed by walls. There is a gateway by which worshippers obtain access to the shrine and outside this gate is the prakaram of the temple. The case for the plaintiffs is that during the festivals a pandal is to be put up and it was the duty of the trustees of the Devarajaswami temple to erect the pandal, that in 1915 and 1916 the trustees did not put up the pandal pleading want of funds in the Devasthanam and they stated that they would have no objection to put up the pandal if either a permanent fund was created by the Thengalai worshippers or an annual sum of Rs. 20 was paid and that the plaintiffs accordingly tendered Rs. 20 and also offered to set apart a fund of Rs. 200 for the purpose of putting up a pandal but that the trustees wrongfully refused to receive the money and put up the pandal. The suit, therefore, was for a decree directing the defendants to receive the Rs. 20 offered by the plaintiffs and to put up a pandal in the inner courtyard of the shrine of Manawala Mahamuni and in the outer entrance (prakaram) to issue a permanent mandatory injunction directing the defendants to receive the money in succeeding years and to put up a pandal or to receive Rs. 200 as a fund. Various defences were raised by the defendants the chief of which were that the suit is not maintainable by the plaintiffs, that it ought to have been instituted under Section 92 of the Civil Procedure Code or Section 14 of the Religious Endowments Act after obtaining the proper sanction, that it was not customary to erect a pandal which extended beyond the walls of the shrine and into the prakaram and that the real object of the plaintiffs was to carry the idol of Manavala Mahamuni outside the shrine and into the prakaram of the temple which was opposed to all custom. The District Munsif passed a decree in favour of the plaintiffs and granted a mandatory injunction directing the dharmakarthas to put up a pandal according to mamool. He held that the right claimed by the plaintiffs being a personal right Section 92 had no application. An appeal was preferred to the District Judge who held that the suit ought to have been filed under Section 92 and reversed the decree of the District Munsif. Hence the second appeal.

2. So far as the facts are concerned, the finding of the District Munsif that a pandal was being put up for several years has been confirmed by the District Judge. The learned District Judge observes as follows:

As far as the putting up of the pandal is concerned, I think there can be no doubt that it is of very long standing dating back certainly to 1820 when the temple was managed by Government and payment towards it was made from the tasdik. I do not think it is now disputed that this putting up of a pandal is of long standing, but, if it is, I may say the lower Court has fully dealt with it and shown it to be established by custom and by legal decisions, e.g. Second Appeals Nos. 174 and 188 of 1894 (Ex. C-1) and O.S. No. 11 of 1890 (Ex. C). It was established that the Thengalais could contribute but that the pandal was to be put up by the Vadagalai trustees with materials of the temple and that dancing girls from other temples might not be introduced.

3. This finding is binding on us and we see no reason to hold that the finding is not amply borne out by the record. The exhibits filed in this case show that the Vadagalai trustees have been putting as many obstacles as possible to the worship by the Thengalais of Manavala Mahamuni in the shrine. The shrine was at one time closed and the Thengalais had to go to Court for the shrine to be opened and they got a decree and when the shrine was opened, the idol was not there and after nearly 12 years of search the idol was found in a tank. When the Thengalais wanted to restore the idol to the shrine objection was taken by the Dharmakarthas that it was a new idol and not the old idol and after considerable litigation the Court found that the idol was the old one and it was restored to the shrine Then disputes arose as to the pandal to be put up and one stage was reached when the High Court disposed of S.A. No. 137 of 1902. The decision is reported in Krishnaswami Thathachariar v. Narasimha Thathachariar 16 M.L.J. 150. The dharmakarthas of the Devarajaswami temple claimed that they were entitled to the sole management and superintendence of the shrine of Manavala Mahamuni and of all the ceremonies in that shrine including the annual thirunakshathram utsavam and that the Thengalaiarchakas of that shrine were not entitled to put up a pandal or do anything else independently of the plaintiffs in the said shrine either in connection with the annual thirunakshathram or otherwise and for an injunction restraining the archakas from so acting. The High Court called for a finding as to whether the idol of Manavala Mahamuni was entitled to any procession and the District Judge found that the idol was not carried in procession after 1852 except for the short period between 1892 and 1897. The High Court held that the dharmakarthas of the temple were the persons who were in management of the thirunakshathram but they refused to give any finding or direction as to the procession on the ground that it was not within the scope of that suit and stated that if there was any grievance the worshippers could apply under Act XX of 1863.

4. The archakas seem to have taken the idol of Manavala Mahamuni outside the walls of the shrine and into the prakaram and the trustees promptly dismissed them alleging it as one of the grounds for dismissal and a suit was instituted for a declaration that the archakas were validly dismissed and for a perpetual injunction restraining them from performing the duties of archakas in the Manavala Mahamuni shrine. The archakas naturally said that they were acting within their legal rights and that the dismissal was wrong, and this raised the question as to the right to take the idol outside the walls of the shrine and into the prakaram. The judgment of the District Munsif is Ex. F. The District Munsif believed the evidence of the witnesses who deposed that the idol was taken outside the walls of the shrine. He refused to uphold the order of dismissal. On appeal the District Judge agreed with the decision of the District Munsif and dismissed the appeal of the dharmakarthas. The learned Judge in dealing with the charge that the archakas were guilty of misconduct in taking the idol from the inner shrine to the front verandah observed as follows:

5. 'It has been decided that the Manavala Mahamuni idol is not entitled to an independent procession, but I cannot find that it has ever been decided that it is not entitled to a procession inside its own shrine and verandah. In the present case there is some evidence that it is entitled to such a procession (vide paras. 25 and 54 of the District Munsifs judgment). This being so, I do not think the charge is one on which the defendant should have been dismissed.

6. It seems to me that the judgments of the District Munsif and the District Judge do not define how far the verandah is to extend and how far the idol can be taken outside the walls of its own shrine. There can be little doubt from the evidence that the pandal put up did extend a little outside the walls but how far it did not appear.

7. The result of the previous litigation and the findings in the present suit establish (1) that the persons who are to put up the pandal are the dharmakarthas of the Devarajaswami temple, (2) that such a pandal was being put up for several years and it is the custom to put up such a pandal during the utsavam, (3) that the cost was met from the general funds of the Devarajaswami temple and in cases where there were no funds or the dharmakarthas alleged there were none, the Thengalai worshippers of the Manavala Mahamuni temple supplied the necessary funds, and (4) that there has been a dispute as to the carrying of the idol in procession outside the walls of its own shrine. And though the evidence is that the pandal put up used to project outside the walls of the shrine, there is no decision how far it projected or how far the Thengalais acquired a prescriptive right to have the idol carried beyond the limits of its own shrine. On these facts the question is whether the plaintiffs in this suit are entitled to sue as on the infringement of their personal right without suing under Section 92. There can be little doubt from the authorities that a purely persona right of worshippers and an infringement of such a right give them a cause of action to sue without the necessity of impleading any other worshippers or getting sanction under Section 92, Civil Procedure Code, or the 31Religious Endowments Act. It is unnecessary to refer to the numerous and sometimes conflicting decisions of other High Courts cited on this point as the law so far as the Madras Presidency is concerned is settled by the decision of a Full Bench of this Court in Appanna Poricha v. Narasinga Poricha : AIR1922Mad17 where all the authorities are reviewed. The question, however in the present case is whether there is anything in the plaint which indicates that a purely personal right has been infringed. So far as I can see there is nothing in the plaint which, except the offer and refusal to receive Rs. 20 shows that the plaintiffs have apart from the other worshippers any special cause of action being purely personal to them. In the first place the suit in brought by the two plaintiffs who are not members of a joint family and all that is alleged is that each of them is a worshipper. There is no allegation that these two plaintiffs have been contributing to the putting up of the pandal for any length of time and have acquired any right to do so. The whole plaint proceeds on the footing that it is a common right of all the Thengalai worshippers to worship in the shrine and to see that the utsavam is conducted properly according to mamool and that the putting up of the pandal is a necessary performance of the utsavam. No special right in these plaintiffs apart from the right of the general body of Thengalai worshippers is alleged in the plaint. So far as the dharmakarthas are concerned, their liability is based upon their duty to put up the pandal and to see that the utsavam is properly performed and the breach of such duty by not putting up the pandal though there were funds forthcoming for the purpose. Reference has been made by Mr. Narasimhachari to Vengamuthu v. Pandaveswara Gurukal 6 M. 151 : 2 Ind. Dec. 384; Elayalwar Reddiar v. Namberumal 23 M. 298 : 10 M.L.J. 86 : 8 Ind. Dec. 610; Amritheswara Pandithar v. Murugappa Chettiar 27 Ind. Cas. 886 : 2 L.W. 127 and Kadirvelu Chetty v. Kanjudaiyar 35 Ind. Cas. 88 : 3 L.W. 512; Vengamuthu v. Pandaveswara Gurukal 6 M. 151 : 2 Ind. Dec. 384 was a case where a dancing girl sued to compel a trustee to allow her to worship and make an offering to the idol. She was prevented on the ground that she lost caste by her improper conduct. The learned Judges observe:

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 one of them is wrongfully prevented from so doing he is entitled to seek from the Civil Courts such remedies as they can afford him.

8. A wrongful preventing of a person from taking part on the ground that he has been outcasted is a personal grievance and there is no necessity to implead the public. The case depended upon her right to worship which is an individual right in each worshipper. Elayalwar Reddiar v. Namberumal 23 M. 298 : 10 M.L.J. 86 : 8 Ind. Dec. 610 was a suit against the trustee of a religious endowment by reason of non-performance of certain ceremonies. The suit was filed under Section 14 of Act XX of 1863. There was no question there of any necessity for sanction as sanction had already been given for the institution of the suit. Subramania Iyer, J., discussed the rights of worshippers and the obligation of the trustees as regards the receipt of offerings. The learned Judge held that it was the duty of the trustee to accept the money and apply it for the special purpose for which it was offered unless there were proper grounds for rejecting the offer, and observed as follows:

No doubt the trustee has some discretion in the matter. If, in the exercise of that discretion, he acts (borrowing the words employed by Muthuswami Iyer, J., with reference to an analogous matter in Murugesa Mudaliar v. Nagamani Mudaliar C. 8. No. 213 of 1879 (unreported) cited on both the sides 'with an absence of indirect motives, with honesty of intention and with a fair consideration of the subject,' no misconduct can be imputed to the trustees so acting. But if, on the contrary, the trustee from corrupt or improper motives refuses to allow voluntary contributions offered for purposes not inconsistent with the principles, rules or usages of the institution to be applied for those purposes, in such a case surely persons interested in the institution must be held entitled to proceed against the trustee. And this view of the law is implied by Muthuswami Iyer, J., in the case to which allusion has already been made and on which the learned Vakil for the defendant laid much stress. It would follow from the above that the defendant acted contrary to his duty, should it be proved that though the funds required to carry on the festivals were forthcoming during the period in question, yet he refused to celebrate them without any adequate ground for doing so. A fortiori would he be guilty had it been usual to celebrate them with the aid of voluntary contributions. And of course the Courts are bound to restrain a trustee from injuring the interests of the institution under his charge by corruptly, arbitrarily or want only departing from the ordinary course of procedure in regard to essential or important matters connected with the institution.

9. These observations with which I respectfully agree go no further than to show that there is a right of action to compel a trustee to do his duty where the facts referred to by the learned Judge are found but it is no authority for the proposition that such a breach of duty by the trustee confers a personal right on each worshipper to sue without reference to Section 92, Civil Procedure Code, for a mandatory injunction compelling the trustee to perform his duty. As I said before, the suit was filed under the Religious Endowments Act and no question arose as to the necessity for sanction. Amritheswara Pandithar v. Murugappa Chettiar 27 Ind. Cas. 886 : 2 L.W. 127 decides that trustees will be acting contrary to their duties if they refuse to accept voluntary contributions offered by devotees for the performance of new poojas and festivals provided they are not inconsistent with the object of the institution and the necessary funds are forthcoming from the devotees. This was a suit filed by the miras archakas of the temple against the trustees stating that a new pooja was introduced contrary to mamool and was performed by defendants Nos. 3 and 4. The hereditary archakas who claimed that such an innovation infringed their rights had a personal cause of action. It cannot be said that any of the public had any cause of action by the archakas rights being infringed. There was no question here of any general right of all the worshippers and the learned Judges were only dealing with the contention that a trustee can refuse to receive monies for the performance of a pooja simply on the ground that it was new and not customary in the temple. Kadirvelu Chetty v. Nanjudaiyar 35 Ind. Cas. 88 : 3 L.W. 512 was a suit to declare the right of the plaintiff to per-form the kalyana utsavam in a temple The allegation was that the two plaintiffs in that suit were performing the utsavam for a long time and it was not alleged that the public contributed funds to or were in any special manner interested in the performance of the utsavam. The case fell under the third class of cases enumerated by the learned Judge where a right has been acquired or exercised hereditarily for performing certain festivals in the temple and where such right is negatived by the dharmakartha.

10. One consideration which is relevant in coming to a conclusion whether a personal right has been infringed so as to entitle a party to sue without reference to the other members of the community and without leave under Section 92 of the Civil Procedure Code or Section 14 of the Religious Endowments Act is whether apart from the infringement of the rights of the general body of worshippers there is some damage to the plaintiff special to him and in which the other worshippers have no concern apart from the interest of every worshipper to see that the trustee performs his duties properly. The general body of worshippers are interested in seeing that every worshipper has free access to the temple for purposes of worship and can make a breach of duty one of the grounds of misconduct for filing a suit under Section 92. Civil Procedure Code. This would not prevent an individual excluded from filing a suit to vindicate his personal right and he need not join the public or get permission under a. 92. I do not think that the mere fact that in and for the purpose of giving relief to a plaintiff who has a cause of action personal to himself the Court has to issue a mandatory injunction or give direction to the trustees would put the case within Section 92 of the Civil Procedure Code, or Section 18 of the Religious Endowments Act. Page of 16 M.L.J. As I find no allegation in the plaint that the plaintiffs hare been contributing money for any length of time so as to give them a right by reason of such contribution and the acceptance by the trustees or that any ground exists for holding that any right peculiar to the plaintiffs and not shared in common by the public has been infringed, the cases above referred to would not help the plaintiffs.

11. The nature of the remedy of worshippers is indicated in Krishnaswami Thathachariar v. Narasimha Thathachariar 16 M.L.J. 150 which relates to the present temple and at page 155 Moore, J., observes:

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 dharmakarthas they have their remedy under Act XX of 1863.

Sankaran Nair, J.

12. In dealing with the objection that the suit should have been filed under the Religious Endowments Act observes:

This contention appears very reasonable. Otherwise temple management will practically become impossible.

13. I am of opinion that having regard to the allegations in the plaint and the scope of the suit, leave under Section 92, Civil Procedure Code, or under the Religious Endowments Act is necessary.

14. It is argued that at any rate the right to make offerings or subscribe money for the purpose of conducting the utsavam is a personal right in which the other members of the public are not interested, that it is not open to a person who wants to subscribe and whose subscription has been refused to require the other members of the public to join him in making the offer or in subscribing and that the dharmakarthas are bound to receive the amount offered by the plaintiffs. If the question simply was as to the receiving of monies there would not be much difficulty in directing the trustees to receive the monies but in the present case it is clear from the pleadings and from the arguments addressed to us that the real dispute is as to whether the pandal is to be confined to the four walls of the shrine of Manavala Mahamuni or could project outside the walls and into the prakaram, and whether the idol is to be carried outside the walls and into the prakaram. There can be little doubt that the reason why the trustees refused to receive the money was this dispute. Mr. Ramachandra Iyer for the respondents very properly conceded that if all that is required is that a pandal should be put up so as not to project into the prakaram but simply to cover the open space within the four walls in front of Garbha Graham his clients would have no objection. Had there been any clear adjudication in the previous litigation as to the limits to which the pandal to be put up was to extend, I would be disposed to direct the trustees to receive the money and make no further declaration in the matter, leaving it to the plaintiffs to file a separate suit for breach of trust if the trustees on receiving the money failed to put up the pandal. But having regard to the fact that the real dispute is as to the extent of the pandal and, the right to carry the idol in procession outside the four walls, I would not be exercising a proper discretion in directing the trustees to receive the money as this will simply be used as a lever to complain that the trustees have committed a breach of trust It should also be remembered that other worshippers may come forward with subscriptions and claim as to the extent of the pandal and even if we call for a finding as to the extent of the pandal to be put up it would not bind the other worshippers. It should also be borne in mind that the District Munsif anticipating trouble from the plaintiffs and enjoined them by the decree not to conduct any procession not according to mamool. Having regard to the nature of disputes and that the real dispute is as to the right to take the idol of Manavala Mahamuni outside its own shrine a mandatory injunction directing the trustees to receive the subscription of the plaintiffs and put up a pandal according to usage would be useless so long as the usage is not settled but has been in dispute for several years. I think the proper course is for a suit to be filed which would set at rest the rights and duties of the worshippers and dharmakarthas and this can only be done under a. 92, Civil Procedure Code or the Religious Endowments Act.

15. The appeal fails and is dismissed with costs.

Reilly, J.

16. The plaintiffs, two individual members, of the Thengalai sect, have brought this suit for certain reliefs in connection with the shrine of Manavala Mahamuni in the Devarajaswami temple at Conjeevaram, the defendants being the trustees of that temple The prayers in the plaint are for mandatory injunctions directing the defendants to receive Rs. 20 from the plaintiffs and to put up a panda in the courtyard of the shrine and in the prakaram of the temple outside that courtyard at the time of an approaching annual festival and directing them and their successors to arrange for the construction of such a pandal every year at the time of the festival out of the income of Rs. 200 to be provided by the plaintiffs as an endowment for the purpose The District Munsif made a decree, the effect of which was to require the defendants to receive Rs. 20 or any additional sum which might be necessary from the plaintiffs every year and to put up pandals for the shrine in accordance with 'the established usage', leaving them at liberty to receive contributions also from other Thengalai worshippers at the shrine, and further restraining the plaintiffs themselves from conducting any processions for the idol of the shrine 'which are not sanctioned by the Shastras and established usage of the institution.'

17. On appeal the District Judge dismissed the suit, and against that dismissal the plaintiffs have presented this appeal.

18. One of the reasons why the learned District Judge dismissed the suit was that he found that it was of such a nature as could be brought only under Section 92, Civil Procedure Code, or Section 14 of the Religious Endowments Act, 1863, and therefore, being instituted in the District Munsif's Court and without the sanction required for a suit under either of these provisions, it could not be maintained. Mr. Narasimhachariar has been at pains in his argument before us for the plaintiffs to represent that his clients have brought this suit only in order to vindicate their individual rights to worship or to perform acts connected with worship at the shrine in question. It is not disputed that such a suit to enforce an individual right to worship in a temple can be brought in a District Munsif's Court without sanction. Vengamuthu v. Pandaveswara Gurukal 6 M. 151 : 2 Ind. Dec. 384 is an authority for the position that the right to worship which can be enforced by a suit includes the right to make offerings of the usual nature, which the temple authorities must receive. In Vaidianatha Thambiran v. Chandrasekara Dikshitar 15 M.L.J. 458 it was decided that the right to worship in a temple carries with it the right to attend any festival in the temple, to contribute towards the funds for the performance of the festival and to require that the contribution be used for that purpose however much may have been contributed by other persons. These are individual rights, which an individual can enforce against the temple authorities, if they obstruct him, without proceeding under either Section 92, Code of Civil Procedure or Section 14 of the Religious Endowments Act, 1863, or the provisions which have now taken their places for Hindu temples in this Presidency. There are also decisions that an hereditary right 'to perform' a particular festival in a temple or in connection with it can be enforced by a suit, to which those provisions will not apply. See Kadirvelu Chetty v. Nanjundaiyar 35 Ind. Cas. 88 : 3 L.W. 512; Thirumalai Alwar Iyengar v. Srinivasachariar Swamigal : (1916)31MLJ758 and Pankajammal v. Secretary of State for India 40 Ind. Cas. 516 : 40 M. 1108 : 5 L.W. 346 : 32 M.L.J. 237 : 21 M.L.T. 411. The expression 'to perform a festival', which is often used in such cases, is not very precise and leaves it doubtful whether the right in question is to bear the cost of the festival or to take any physical part in the proceedings at the festival or in the direction of the proceedings. But apart from the cases which deal with the hereditary rights of particular families in connection with particular festivals, no decision has been quoted before us that the suit of a private individual (other than a suit under 8.92, Code of Civil Procedure, or the Religious Endowments Act, 1863, or the provisions which now correspond to them) in respect of his right to worship in a temple can go beyond the enforcement of his individual right against any attempt to infringe it or to exclude him from participation in worship in the temple. If what was complained of was that the trustees had failed in their duty to the whole body of worshippers or to any considerable sect or group among them by neglecting to provide for the celebration of any festival, which according to the usage of the temple should be celebrated, or to provide for the performance of the ordinary worship of the temple according to usage, then the appropriate kind of suit at the time when the present suit was instituted appears to have been one under Section 92, Civil Procedure Code, or Section 14 of the Religious Endowments Act, 1863. That where the relief sought is, not the protection of an individual against the infringement of his right of worship or against his exclusion from taking part in any festival or worship, but to compel the trustees to perform some duty to the whole body of worshippers or to some considerable group of them which they have neglected to perform, the appropriate remedy was a suit under Section 14 of the Religious Endowments Act, 1863, was decided in Elayalwar Reddiar v. Namberumal 23 M. 298 : 10 M.L.J. 86 : 8 Ind. Dec. 610.

19. In the plaint in the present suit it is stated that defendant No. 1 as executive trustee of the temple is bound to put up the pandal in question; which according to established usage is put in the courtyard of the shrine and in the prakaram outside it, the trustees being Vadagalais are hostile to this Thengalai shrine and have been making efforts in the past to get the shrine locked up and the ceremonies connected with it stopped; in the year before the suit the trustees failed to put up the pandal: the plaintiffs asked defendant No. 1 many times to put it up, and he replied that the temple had no funds for the purpose but that he would put the pandal up if Rs. 20 was paid for its cost and a permanent fund established to meet the cost of the pandal in future years: the plaintiffs agreed to that proposal and offered to pay Rs. 20 for the cost of the pandal at the approaching festival and to establish a trust fund of Rs. 200 with themselves as trustees for the cost of pandals in future years: in spite of that defendant No. 1 failed to have the pandal put up and eventually he refused to receive the Rs. 20 on 10th October, 1917; Defendant No. 1's failure to receive the Rs. 20 and have the pandal put up was a breach of trust, and, therefore, the Court should make the injunctions prayed for. The date of the cause of action is given in the plaint as 10th October, 1917; the date on which defendant No. 1 refused to receive the Rs. 20; and it is urged for the plaintiffs by Mr. Narasimhachariar that that is the heart of this suit, which is one they are entitled to bring to enforce their private right to make this contribution as an act of worship. But it will be seen that the substance of the plaintiffs' complaint is that the Vadaglai trustees out of hostility to the Thengalai shrine has failed to put up the pandal, though according to the established usage of the temple it should be put up when the trustees failed to have the pandal put up. The plaintiffs repeatedly asked them to have it put up. It was only when defendant No. 1 said there were no funds for the purpose and suggested that the plaintiffs should provide money that they agreed to do so. The real grievance of the plaintiffs is one which they share with the rest of the Thengalai worshippers, namely, that the trustees have failed to put up the pandal according to usage for the festival of this Tengalai shrine, it is clear that, if the trustees had carried out this alleged duty to put the pandal, as the plaintiffs contend, they should have done according to the usage of the temple, the plaintiffs' offer to contribute Rs. 20 or to establish a trust-fund would never have been made. I understand also from what was said by Mr. Narasimhachariar at the hearing of this appeal that, if the trustees would consent to put up the panda in accordance with the usage as alleged by his clients, the plaintiffs would no longer be anxious that their offered contribution to its cost should be accepted. It is evident that the real object of the suit is, not to enforce the right of the plaintiffs as individuals to make a contribution as an act of worship, but to compel the trustees to carry out an alleged duty, their failure in which affects every Thengalai worshipper of the temple. The real object of the suit is, therefore, one which fell within Section 14 of the Religious Endowments Act, 1863. And the prayer that the trustees of the temple shall be ordered to arrange for putting up the pandal every year and to use for that purpose the income of a trust-fund to be created, of which the plaintiffs are to be the trustees, is in the nature of settling a scheme for this particular shrine and so fell within the provisions of Section 92, Code of Civil Procedure. But all this does not put the plaintiffs out of Court. With respect I would not be prepared, even if I were at liberty, to go so far as the dictum of Walsh, J. in Ali Jafar v. Fazal Husain Khan 67 Ind. Cas. 659 : 44 A. 622 : 20 A.L.J. 557 : 4 U.P.L.R. 131: A.I.R. 1922 All 349 quoted before us for the defendants, that 'Suits with regard to trusts relating to public charities must either be brought under Section 92 or they cannot be brought at all,' even if we understand him to include his reference to Section 92, Code of Civil Procedure, Section 14 of the Religious Endowments Act, 1863, which is mentioned in Section 92, Code of Civil Procedure. On the contrary Section 92, Code of Civil Procedure like any provision curtailing the right to come to the Civil Courts for reliefs, must be construed strictly. The decision of the Full Bench in Appanna Poricha v. Narasinga Poricha : AIR1922Mad17 is against the wide dictum of Walsh, J. in Ali Jafar v. Fazal Husain Khan 67 Ind. Cas. 659 : 44 A. 622 : 20 A.L.J. 557 : 4 U.P.L.R. 131; A.I.R. 1922 All 349 and against also the more guarded dictum of Piggott, J., in the same case that Section 92, Code of Civil Procedure is intended to be an exhaustive statement of the law applicable to suits based upon any alleged breach of any express or constructive trust created for purposes of a charitable or religious nature. Appanna Poricha v. Narasinga Poricha : AIR1922Mad17 makes it clear that, even if the relief claimed is one which falls within Section 92, Code of Civil Procedure, that section is not necessarily applicable when the suit is really a personal, not a representative, suit and is brought to enforce the plaintiffs' right as an individual. Nor is it disputed in the present case that, so far as a suit against a temple trustee is for the vindication or protection of an individual worshipper's rights, it does not come within Section 92, Code of. Civil Procedure, if the real object of a suit is a relief which should be sought under Section 14 of the Religious Endowments Act, 1863, or Section 92, Code of Civil Procedure but nevertheless the plaintiff includes in his suit, as the plaintiff's have done in this suit, a prayer for the relief by way of enforcement of his individual right of worship, there might be reason to direct him to amend his plaint by confining it to this matter, but in my opinion the Court would not be justified in refusing to listen to him together. If, however, as decided in vaidinatha Thambiran v. Chandra Sahara Dikshitor 15 M.L.J. 458 the right to worship includes also the right to contribute towards the expenses of a festival and to require that the contribution be used for the purpose for which it is given it may often be difficult to draw the line clearly between enforcing the individual worshipper's right and compelling the temple trustee to do his duty. It is here that there is room for a plaintiff, who for any reason wishes to evade the provisions of Section 92, Code of Civil Procedure, to frame his suit so as to seek under the guise of vindicating his individual right a direction to the temple trustee to fulfil his duty to the worshippers generally. That we should certainly do nothing to encourage. And it is that which the plaintiffs appear to me to have done in the present suit so far as it can be regarded as a suit for the enforcement of their individual right at all. In my opinion we cannot say that this suit is entirely incompetent. But in a suit of this nature it does not follow, even, if the plaintiff makes out his case, that the reliefs for which he prays or any of them should be granted. Remembering that the plaintiffs are praying for discretionary reliefs by injunction we ought, I think, to refuse to countenance their attempt in this suit to evade the provisions of Section 92, Code of Civil Procedure. In my opinion the plaintiffs' suit ought to be dismissed even though in part it is aimed at the enforcement of their individual rights because the enforcement of those rights appears to have been dragged in as a manouvre to enable them to bring their suit without sanction and in the District Munsif's Court, and in the circumstances it is a proper exercise of our discretion to prevent such a manouvre from succeeding.

20. Moreover there are other reasons why the injunctions made by the District Munsif should not be upheld. The District Munsif has directed the trustees to put 'the necessary pandals according to the established usage.' What the usage is in regard to the pandals and in particular how far they should extend into the prakaram has not been found and is obviously likely to be the subject of bitter dispute. Such an injunction is little more than an invitation to fresh litigation. And, what is more important, the District Munsif has found in view of the unhappy relations between the trustees of the temple and the Thengalai worshippers that it is necessary 'in the interests of order peace and tranquillity' to include in his decree an injunction restraining the plaintiffs themselves from conducting any processions in connection with the shrine or its idol 'which are not sanctioned by the Shastras and the established usage of the institution under the guise of this decree,' Now, it is clear that, if such an injunction is necessary at all--and it has not been suggested before us that it is unnecessary it is useless to direct it against the plaintiffs alone, who are only two of the many Thengalai worshippers of the shrine and do not, so far as appears occupy any prominent positions among them. This shows how undesirable it is to make such, injunctions as have been sought in these proceedings in a suit brought by individual plaintiffs otherwise than under the provisions of Section 14 of the Religious Endowments Act, 1863, or of Section 92, Code of Civil Procedure. In my opinion the learned District Judge was right in his finding that this is not a suit in which the injunctions prayed for should be made.

21. I agree that this appeal should be dismissed with costs.


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