CASE NO.: Appeal (civil) 5641 of 2004 PETITIONER: Vinayaka Dev Idagbunji & Ors. RESPONDENT: Shivaram & Ors. DATE OF JUDGMENT: 28/07/2005 BENCH: B.P. Singh & Arun Kumar JUDGMENT:
J U D G M E N T
ARUN KUMAR, J.
The question for consideration in this appeal is :Whether a suit to
establish a right to be hereditary ‘archaks’ (Pujaris) in a temple and a
share in the offerings made to the deity, is a suit in relation to personal/
private right of the archaks or it is a suit in the nature of exercising a
public right in a public trust? The question has arisen in the context of
bar created by Section 50 of the Bombay Public Trusts Act, 1950.
Regarding suits falling within the categories enumerated in Section 50
of the Act, either the Charity Commissioner has to file them or they
have to be filed after obtaining consent in writing of the Charity
Commissioner.
Briefly, the facts are : the plaintiffs (respondents herein)
claiming to be hereditary archaks of the temple in suit from times
immemorial and having a right to perform their duties (poojapal)as
archaks in the temple, filed a civil suit for declaration to establish these
rights. According to the plaintiffs, their family has been performing
poojapali and exercising the rights incidental thereto since ancient
times. The plaintiffs also claimed that they are entitled to emoluments
in the form of share in the offerings made by the devotees. The
ancestors of the plaintiffs have been exercising such rights since time
immemorial when there was no trust for the temple and there were no
trustees. The trust was created much later and the trustees are only
managers of the properties of the trust. The trustees sought to remove
the plaintiffs from archakship. According to plaintiffs the trustees had
no right to remove hereditary archaks like the plaintiffs. The plaintiffs
further pleaded that often the offerings to the deity are symbol of
sacrificial dedication of the produce of the land grown by the efforts of
the devotees. “Padiakki” is the rice and coconut given by the devotees
as dan (donation) to the officiating priest to take home. On this count,
the priest has to accept the many negative karmas of the donor and to
mitigate this, the priest has to perform penance. The plaintiffs had
been exercising their rights to the knowledge of the defendants who are
the trustees of the temple trust. According to the plaintiffs the
archakship is not a job or vocation but a hereditary religious office,
functions whereof they have to discharge ungrudgingly. A state of
harmony and cooperation between the trustees and archaks continued
till 1974-75. Thereafter, the trustees allegedly prepared a
“Niyamavali” (Rule Book) meant for regulating the activities like
Pooja and Viniyogas etc. The Niyamavali had no legal or statutory
backing. Under the Niyamavali the trustees also tried to interfere with
the right of the plaintiffs regarding remuneration and donations
received by them from the devotees. According to the plaintiffs the
emoluments received by the archaks are not the income of the temple.
In order to get rid of the plaintiffs, the defendants issued a notice
dated 21st September, 1994 terminating their services as archaks. The
plaintiffs filed the instant suit for declaration that the plaintiffs are
hereditary archaks of Shri Mahaganapathy (Vinayaka Dev) Temple of
Idagunji in Honnavar Taluk and for consequential reliefs like declaring
that the order of termination issued by defendants dated 21st
September, 1994 is illegal, void and contrary to the principles of
natural justice etc.
The defendants appellants filed a written statement denying the
rights of the plaintiffs to be hereditary archaks. It was further pleaded
that the temple was under a public trust registered under the Bombay
Public Trusts Act, 1950. Further a plea was taken in the written
statement that the suit filed against the trustees of the public trust and
the reliefs prayed in the plaint directly relate to administration and
management of the public trust and as such without making the temple
trust a party, the suit was not maintainable in view of Sections 50, 51,
79 and 80 of the Bombay Public Trusts Act read with Section 9 of the
Code of Civil Procedure. According to the defendants, the plaintiffs
had not obtained the permission of the Charity Commissioner as
required under Sections 50 and 51 of the Bombay Public Trusts Act to
file the present suit.
On the basis of the pleadings of the parties, the trial court framed
as many as 32 issues. At the stage of evidence the defendants filed an
application under Order 14 Rule 2 read with Section 151 of the Code
of Civil Procedure that certain issues relating to maintainability of the
suit be tried as preliminary issues. The application was rejected by the
learned Civil Judge. The defendants filed a Revision Petition under
Section 115 of the Code of Civil Procedure before the High Court. The
High Court declined to interfere with the order of the trial court and
accordingly dismissed the Civil Revision Petition. Further, in view of
the fact that the suit had been pending for more than 10 years, a
direction was issued to the trial court to dispose of the suit on merits
within six months. The defendants, according to the said order, have
come up before this court by way of a petition for special leave to
appeal. Leave was granted and the order under appeal was stayed by
this court on 30th August, 2004. Interim stay of the impugned order
was passed on the first day of hearing, i.e. on 7th May, 2004. We have
heard learned counsel for the parties at length. The main question for
consideration is whether the suit filed by the respondents-plaintiffs is
one which pertains to administration of a public trust or is it a suit to
establish a private right to archakship or worship in the temple filed by
persons claiming to be having such a right? Relevant portion of
Section 50 of the Bombay Public Trusts Act as applicable to the facts of
the present case is reproduced as under :
” Section 50 :
In any case-
(i) where it is alleged that there is a breach of a
public trust,
(ii) where a declaration is necessary that a
particular property is a property belonging to a
public trust or where a direction is required to
recover the possession of such property or the
proceeds thereof or for an account of such
property or proceeds from any person including
a person holding adversely to the public trust, or
(iii) where the direction of the Court is deemed
necessary for the administration of any public
trust,
the Charity Commissioner or two or more persons
having an interest in the trust and having obtained the
consent in writing of the Charity Commissioner as
provided in Section 51 may institute a suit whether
contentious or not in the Court within the local limits of
whose jurisdiction the whole or part of the subject matter
of the trust is situate, to obtain a decree for any of the
following reliefs :
(a) an order for the recovery of the possession of such
property or proceeds thereof,
(b) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager,
(cc) vesting any property in a trustee,
(d) a direction for taking accounts and making certain
inquiries,
(e) a declaration as to what proportion of the trust
property or of the interest therein shall be
allocated to any particular object of the trust,
(f) a direction authorizing the whole or any part of the
trust property to be let, sold, mortgaged or
exchanged,
(g) the settlement of a scheme or variations or
alterations in a scheme already settled, or
(h) granting such further or other relief as the nature
of the case may require :
Provided that no suit claiming any of the reliefs
specified in this section shall be instituted in
respect of any public trust except in conformity
with the provisions thereof.”
To find out the nature of the suit, we have to go to the plaint in
the suit as instituted by the plaintiffs- respondents in the Civil Court. It
is the case of the plaintiffs that they have a hereditary right of
archakship with emoluments attached. This right of archakship started
with the consecration of the deity. The families of the plaintiffs have
been performing archakship right from the time of consecration of the
deity. In fact the ancestors of the plaintiffs who were performing the
functions as archaks also acted as managers and custodians of the
temple and its properties. After the introduction of the Madras
Endowment Act, the trustees were appointed. One of the members of
the families of the plaintiffs used to be appointed as a trustee of the
Board which consisted of five trustees at the initial stages. This
continued till the year 1930 whereafter they stopped having a member
of the plaintiffs’ families on the Board of trustees. The plaint contains
various details to show and establish the right of the plaintiffs to
archakship of the temple and the right to a share in the offerings of the
deity with which we are not concerned at this stage. The fact relevant
for our purpose is that vide a notice dated 21st September, 1994, the
plaintiffs’ services as archaks were terminated with which their right to
perform puja in the temple and to have a share in the offerings also
came to be terminated. The plaintiffs challenged the said notice as
illegal and untenable. The plaintiffs prayed for a declaration that they
are hereditary archaks of the temple in question. The said right to act
as archaks was in the nature of the property. A declaration was also
sought to have share in the offerings to the deity at the temple. Further
a declaration was sought that the order of termination dated 21st
September, 1994 was illegal, void and contrary to the principles of
natural justice. Injunction was sought to restrain the plaintiffs from
interfering with the rights of the plaintiffs in performing their duties as
archaks.
We are in the present appeal concerned with the pleas raised by
the defendants- appellants in their written submissions to the effect that
the suit was barred under Section 50 of the Bombay Public Trusts Act,
1950. The trial court as well as the High Court have rejected this plea
raised by the defendants-appellants.
A perusal of Section 50 of the Act shows that in matters referred
to or enumerated in the said Section, a suit is to be instituted after
obtaining the consent in writing of the Charity Commissioner as per
provisions of Section 51 of the Act. The learned counsel for the
appellants submitted that the claim of the plaintiffs in the plaint falls
within the ambit of administration of a public trust as admittedly there
is a public trust with respect to the temple in question. If the matter
pertains to administration of public trust then the Charity
Commissioner comes into the picture and a Civil suit is not
maintainable without compliance of Sections 50 and 51 of the Act. The
real question is whether the present suit is a suit pertaining to
administration of a public trust. In response to this question, the
learned counsel for the respondents drew our attention to the preamble
to the Act which provides “an Act to regulate and to make better
provision for the administration of public religious and charitable
trusts in the State of Bombay”.
From this Preamble it is apparent that the main object of the
Act is to regulate the administration of public trusts. The question is:
Will this extend to regulating the right to perform worship in the
temple? The right asserted by the plaintiffs in the plaint is claimed as
their families’ personal/private right. Whether they are entitled to
continue as archaks on hereditary basis is a private claim of the
plaintiffs. This right has nothing to do with any public functions of the
trust or administration of the trust. Thus according to the learned
counsel for the plaintiffs, Section 50 of the Act is not attracted at all.
In support of the submission that the right claimed by the plaintiffs is
their personal right which is an enforceable civil right, the learned
counsel relied on Rajkali Kuer vs. Ram Rattan Pandey [ 1975 (2) SCR
186 ] wherein it was observed “that religious offices can be hereditary
and that the right to such an office is in the nature of property under
the Hindu Law is now well established.” In the said judgment, this
Court has relied on a Full Bench judgment of the Calcutta High Court
while observing as under :
“That religious offices can be hereditary and that
the right to such an office is in the nature of property
under the Hindu Law is now well established. A Full
Bench of the Calcutta High Court in Manohar vs.
Bhupendra [AIR 1932 Calcutta 791] has laid down
in respect of Shebaitship of a temple and this view
has been accepted by the Privy Council in two
subsequent cases in Ganesh vs. Lal Behary [(1936)
LR 63 IA 448] and Bhabatarini vs. Ashalata
[(1943)LR 70 IA 57]. In a recent judgment of this
Court reported as The Commissioner, Hindu
Religious Emdowments, Madras vs. Sri Lakshmindra
Thirtha Swamiar [(1954) SCR 1005] this view has
been reiterated and extended to the office of a
Mahant. On the view that Shebaiti is property, this
Court has also recognized the right of a female to
succeed to the religious office of Shebaitship in the
case reported as Angurbala vs. Debabrata [(1951)
SCR 1125], where the question as to the applicability
of Hindu Women’s Right to Property Act to the office
of Shebaitship came up for consideration. On the
same analogy as that of a Shebaiti right, the right of
a hereditary priest or Pujari in a temple must also
amount to property where emoluments are attached
to such an office.”
Reliance was also placed on Ram Rattan, through Lrs. Vs.
Bajrang Lal and ors. [ 1978 (3) SCC 236] wherein while dealing with
the question whether hereditary office of Shebait is immovable
property, it was noted that :
“The question then is whether the hereditary office of
Shebait is immovable property. Much before the
enactment of the Transfer of Property Act a question
arose in the context of the Limitation Act then in force
whether a suit for a share in the worship and the
emoluments incidental to the same would be a suit for
recovery of immovable property or an interest in
immovable property. In Krishnabhat bia Hiragange
vs. Kanabhat bia Mahalbhat etc. [ 6 Bom HCR 137]
after referring to various texts of Hindu Law and the
commentaries of English commentators thereon, a
Division Bench of the Bombay High Court held as
under :
Although, therefore, the office of a priest in a
temple, when it is not annexed to the ownership of any
land, or held by virtue of such ownership, may not, in
the ordinary sense of the term, be immovable property,
but is an incorporeal hereditament of a personal
nature, yet being by the custom of Hindus classed with
immovable property, and so regarded in their
law”
It was argued on behalf of the respondents that the reliefs
claimed in the present suit do not fall in any of the clauses of Section
50 of the Act. There is no allegation of breach of trust; no declaration
is sought that any property is a property belonging to a public trust.
The right to archakship is an individual and personal right enforceable
under ordinary law; nor any direction of the court is sought for
administration of the public trust. The plaintiffs have never sought any
orders of the court regarding administration of the trust. To illustrate
the point our attention was drawn to Sri Kallagar Devasthanan vs.
Thiruvengadathan [ AIR (30) 1943 Madras 222]. In this case the
question was about the competence of Civil Court to entertain a suit.
Father of the plaintiffs in this case was a hereditary archak of a temple.
The plaintiff was adopted by the mother after the death of his father.
The trust did not recognize the plaintiff as an archak. The plaintiff
filed a civil suit challenging the action and he being not allowed to be
archak of the temple. Objection was taken about the maintainability of
the suit. Reliance was placed on Section 73 of the Hindu Religious
and Endowments Act by the defendants in support of objection
regarding maintainability of the suit. The said Section had provision
similar to the one under consideration in the present case. The
following observations are relevant for the present purpose :
“If the words “administration or management”
used in sub-clause (3) of s.73 have been employed with
reference to the “religious endowment” as defined in
the Act and this is what is stated in that sub-clause, it
appears to be clear that they could not possibly be
taken to cover or include the case of a dismissal of an
archaka of a temple. The administration or
management must be with reference to the “religious
endowment,” i.e. with reference to the property
mentioned in the definition and not with respect to the
dismissal of an archaka. The suit to set aside his
dismissal relates to a personal right and as long as
there is no question relating to the administration or
management of the endowed property, the suit cannot
be held to have been barred under that section.”
This was also a case in which right to archakship was claimed
and it was held to be a private personal right which had nothing to do
with administration or management of the trust and the suit was held to
be maintainable in a civil court. In the case in hand
respondents/plaintiffs are trying to establish their hereditary right to
act as archaks in the temple in suit. This has nothing to do with
administration of the trust.
What is to be seen is the relief the plaintiffs are seeking from the
court. First of all, they are seeking a declaration about their
hereditary right as archaks of the temple. This right is claimed in their
personal capacity as a family of archaks who have been performing the
functions of archaks since the day the temple was established and the
deity was consecrated. It is different matter whether ultimately the
plaintiffs’ contention is accepted by the court or not. Surely, the
plaintiffs are entitled to have their claim examined by the court. If they
fail to establish their claim, they will be out of the court. However, if
they succeed in establishing the claim they will be entitled to the
declaration sought. They cannot be non suited at the threshold unless
the suit is expressly barred by any statute. We have seen the provision
of Section 50 of the Bombay Public Trusts Act relied upon by the
appellants-defendants. The said section does not cover a suit of the
present type. Analogy has been drawn of Section 92 of the Code of
Civil Procedure while considering Section 50 of Bombay Public Trusts
Act. Both provisions are in the nature of representative suits which
pertain to public trusts and protection of public interest in the trusts.
In the present case, there is no public interest involved. The only
interest is that of the plaintiffs and their families. The right of
archakship is claimed on the basis of inheritance. It is a hereditary
personal right which they want to establish. The right is purely of a
private nature. We are of the view that Section 50 of the Bombay
Public Trusts Act is not attracted at all in the facts of the present case.
We have seen the object of the Bombay Public Trusts Act.
Appropriately the Act seeks to regulate and make better provision for
administration of public religious and charitable trusts. Such trusts
cater to things of public interest, i.e .things which concern large
sections of public. Unless such trusts are properly administered public
interest will suffer. Therefore, matters affecting administration of such
trusts are covered under Section 50 of the Bombay Public Trusts Act.
This situation is somewhat similar to suits under Section 92 of the Code
of Civil Procedure. These suits are suits in representative capacity and
pertain to matters of public interest. In contrast the suit which has
given rise to the present appeal is a suit to establish an individual right.
The plaintiffs claim that they are hereditary archaks of the temple since
time immemorial and are entitled to exercise this right which cannot be
taken away from them. No public interest is involved. Public is not
concerned whether A acts as an archak or B acts. Such a suit,
therefore, cannot be covered by Section 50 of the Act. Law is settled on
this aspect as per various judgments of this Court.
In Raje Anand Rao vs. Sham Rao and ors. [(1961) 3 SCR 930],
the dispute had arisen in view of dissatisfaction with the management
of a temple which was an endowment for the public. A suit under
Section 92 of the Code of Civil Procedure was filed. A scheme was
framed for the management of the temple. The right of pujaris as a
hereditary right was not affected under the scheme. Therefore, some
of the pujaris who were not parties to the suit and were not, therefore,
heard, made a grievance of this fact. The matter came upto this court.
An amendment of the scheme by the District Judge without hearing the
pujaris was also put in issue. However, it was held that the fact that
the pujaris were not parties to the suit will not take away the
jurisdiction of the District Judge to modify the scheme, if the
modification is with respect to administration of the trust and if it has
not affected the private rights of the pujaris. A suit under Section 92 of
the Code of Civil Procedure being a representative suit binds not only
the parties thereto but all those who are interested in the trust. The
scheme was framed for the management and administration of the trust
and it did not affect the hereditary right of the pujaris to conduct the
puja. Thus this judgment makes it clear that the right of the pujaris to
conduct puja is their private right and does not fall in the category of
suits under Section 92 of the Code of Civil Procedure.
Our attention was drawn by the learned counsel for the
respondents to some other judgments holding the right to perform puja
in the temple as a private right of the pujaris or archaks and the same
cannot be defeated by invoking section 50 the Bombay Public Trusts
Act or Section 92 of the Code of Civil Procedure. We need not refer to
all the judgments in view of the fact that the law on this point is well
settled. We only refer to the latest judgment of this court in
Sahebgouda (Deceased) vs. Ogeppa and ors [ 2003 (6) SCC 151].
This case pertains to a suit for declaration of Pujaris’ Pujariki right of
performing puja. The plaintiff sought an injunction to restrain the
defendants from interfering with the aforesaid right. Objection was
taken about the maintainability of the civil suit in view of the provision
of Bombay Public Trusts Act, 1950. However, the objection was turned
down holding that the reliefs claimed in the suit do not come within the
ambit of Sections 19 or 79 of the Act which gave jurisdiction to the
Assistant Charity Commissioner to decide certain issues like existence
of public trust or whether a property is a trust property. In this suit
brought by the plaintiffs to establish his right of archakship the only
relief claimed was a declaration regarding the right of the plaintiffs-
appellants to function as hereditary pujaris or for pujariki rights in
performing puja in the temple and consequential decree for injunction
for restraining the respondents from interfering with the aforesaid
rights of the plaintiffs. The facts of this case are somewhat similar to
those of the case in hand. It was held that the case was clearly out of
the purview of the barring provisions of the Bombay Public Trusts Act.
We are in respectful agreement with the view taken in this judgment. It
is held that the present suit is not barred by provisions of the Bombay
Public Trusts Act. Accordingly, no interference is called for with the
judgment under appeal. The appeal is without merit and is hereby
dismissed. Since the trial of the suit on merits has been already
sufficiently delayed, the trial court may dispose of the suit on priority
basis as directed by the High Court in the impugned judgment.