BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/11/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA S.A.(MD).No.1075 of 2009 and S.A.(MD).No.176 of 2010 and S.A.(MD).No.646 of 2010 and S.A.S.R.(MD).No.16491 of 2010 and M.P.(MD).No.1 of 2010 in S.A.S.R.(MD).16491 of 2010 and M.P.(MD).Nos.1 of 2009 & 1 of 2010 in S.A.(MD).1075 of 2009 ----
Chockalingam (now died),
Sundara Subramanian
(for themselves and as
representatives of Saivaites) .. Appellant in S.A.(MD).No.1075 of 2009
Vs
1. Nambi Pandiyan
2. Vellappandian
3. Nallamuthu
4. Thirukurungudi Jeeyar Mutt,
through its Jeeyer Swamigal,
Thirukurungudi, Nanguneri Taluk.
5. The Deputy Commissioner,
H.R. & C.E., Nungambakkam, Chennai.
6. The Joint Commissioner,
H.R. & C.E., Tirunelveli,
Thiruvanandapuram Road,
Palayamkottai, Tirunelveli.
7. The State of Tamil Nadu,
through its District Collector,
Kokkirakulam, Tirunelveli-9.
8. Divya Desa Paramparia Padukappu Peravai,
Trichirapalli,
through its Secretary, Sri Krishnamachari,
S/o Anandachari, 214, Keela Uthira Theru,
Thirunagar, Madurai-6.
9. Hindu Bakta Jana Sabai State Committee,
through State President Thiyagarajan,
S/o Vadivel Thevar,
No.5, Joseph Nagar, 1st Cross Street,
Tirunagar, Madurai-6.
.. Respondents in S.A.(MD).No.1075 of 2009
Divya Desa Paramparia Padukappu Peravai,
Trichirapalli,through its Secretary,
Sri Krishnamachari, S/o Anandachari,
214, Keela Uthira Theru,
Thirunagar, Madurai-6.
.. Appellant in S.A.(MD).No.176 of 2010
Vs
1. Nambi Pandiyan
2. Vellappandian
3. Nallamuthu
4. Thirukurungudi Jeeyar Mutt,
through its Jeeyer Swamigal,
Thirukurungudi, Nanguneri Taluk.
5. The Deputy Commissioner,
H.R. & C.E., Nungambakkam, Chennai.
6. The Joint Commissioner,
H.R. & C.E., Tirunelveli,
Thiruvanandapuram Road,
Palayamkottai, Tirunelveli.
7. The State of Tamil Nadu,
through its District Collector,
Kokkirakulam, Tirunelveli-9.
8. Hindu Bakta Jana Sabai State Committee,
through State President Thiyagarajan,
S/o Vadivel Thevar,
No.5, Joseph Nagar, 1st Cross Street,
Tirunagar, Madurai-6.
Chockalingam (now died)
9. Sundara Subramanian
(ninth respondent for himself and
as the representative of people
belonging to Saivaist)
.. Respondents in S.A.(MD).No.176 of 2010
Hindu Bakta Jana Sabai State Committee,
through State President Thiyagarajan,
S/o Vadivel Thevar,
No.5, Joseph Nagar, 1st Cross Street,
Madurai-6.
.. Appellant in S.A.(MD).No.646 of 2010
Vs
1. Nambi Pandiyan
2. Vellappandian
3. Nallamuthu
4. Thirukkurungudi Jeeyar Mutt,
through its Jeeyer Swamigal,
Thirukkurungudi, Nanguneri Taluk.
5. The Deputy Commissioner,
H.R. & C.E., Nungambakkam, Chennai.
6. The Joint Commissioner,
H.R. & C.E., Tirunelveli,
Thiruvanandapuram Road,
Palayamkottai, Tirunelveli.
7. The State of Tamil Nadu,
through its District Collector,
Kokkirakulam, Tirunelveli-9.
8. Divya Desa Paramparia Padukappu Peravai,
Trichirapalli,
through its Secretary, Sri Krishnamachari,
S/o Anandachari, 214, Keela Uthira Theru,
Thirunagar, Madurai-6.
Chockalingam (now died)
9. Sundara Subramanian
(for members and as the
representative of people
belonging to Saivasangam)
.. Respondents in S.A.(MD).No.646 of 2010
1. Vallimanalan
2. P.Vadivazhagia Nambi
.. Appellants in S.A.S.R.(MD).No.16491 of 2010
Vs
Chockalingam (now died)
1. Sundara Subramanian
(for members and as the
representative of people belonging to
Saivasangam)
2. Nambi Pandiyan
3. Vellappandian
4. Nallamuthu
5. Thirukkurungudi Jeeyar Mutt,
through its Jeeyer Swamigal,
Thirukkurungudi, Nanguneri Taluk.
6. The Deputy Commissioner,
H.R. & C.E., Nungambakkam, Chennai.
7. The Joint Commissioner,
H.R. & C.E., Tirunelveli,
Thiruvanandapuram Road,
Palayamkottai, Tirunelveli.
8. The State of Tamil Nadu,
through its District Collector,
Kokkirakulam, Tirunelveli-9.
9. Divya Desa Paramparia Padukappu Peravai,
Trichirapalli,
through its Secretary, Sri Krishnamachari,
S/o Anandachari, 214, Keela Uthira Theru,
Thirunagar, Madurai-6.
10. Hindu Bakta Jana Sabai State Committee,
through State President Thiyagarajan,
S/o Vadivel Thevar,
No.5, Joseph Nagar, 1st Cross Street, Madurai-6.
.. Respondents in S.A.S.R.(MD).No.16491 of 2010
Second Appeals against the judgment and decree dated 14.10.2009 in A.S.Nos.29,
37 and 63 of 2007 on the file of the Subordinate Judge’s Court, Valliyoor,
against the judgment and decree dated 14.3.2006 in O.S.No.288 of 2004 on the
file of the Additional District Munsif Court, Nanguneri.
!For appellants S.A.(MD).No.1075 of 2009 ... Mr.M.Vallinayagam SA.(MD).No.176 of 2010 ... Prof.M.Krishna
S.A.(MD).No.646 of 2010 … Mr.V.Selvaraj for Mr.N.Dilipkumar
S.A.(SR).No.16491 of 2010 … Mr.R.Vijayakumar
^For respondents in S.A.(MD).Nos.1075 of 2009 and 176 and 646 of 2010:
Mr.R.Shanmugasundaram, Senior Counsel for
M/s.K.Azhaguraman, K.Govindarajan, S.Ravi for RR-1 to 3
Mr.T.R.Rajagopalan, Senior Counsel and Mr.Chandrasekaran, for
M/s.N.Krishnaveni & P.Thiagarajan for R-4
Mr.K.M.Vijaya Kumar, Spl.G.P. for RR-5 to 7
Prof.M.Krishna for R-8 in S.A.(MD).Nos.1075 of 2009 and 646 of 2010
Mr.V.Selvaraj for Mr.N.Dilipkumar for R-8 in S.A.(MD).No.176 of 2010
and for R-9 in S.A.(MD).No.1075 of 2009
Mr.M.Vallinayagam for R-9 in S.A.(MD).Nos.176 and 646 of 2010
:COMMON JUDGMENT
As all the Second Appeals arise out of the judgment and decree passed in
O.S.No.288 of 2004 on the file of the Additional District Munsif Court,
Nanguneri, they are taken up and disposed of by this common judgment.
2. For the purpose of convenience, the parties are referred to as they are
originally ranked in the Original Suit No.288 of 2004 on the file of the
Additional District Munsif Court, Nanguneri.
3. All the Second Appeals arise out of the judgment and decree dated
14.10.2009 in A.S.Nos.29, 37 and 63 of 2007 on the file of the Subordinate
Judge’s Court, Valliyoor, reversing the judgment and decree dated 14.3.2006 in
O.S.No.288 of 2004 on the file of the Additional District Munsif Court,
Nanguneri.
4. The averments in the plaint filed by the plaintiffs–Chockalingam,
Sundarasubramanian, in O.S.No.288 of 2004, are as follows:
(a) Thirukurungudi Azhagiya Nambirayar Temple is one of 108 “Divya Desams”
(108 Sacred Vaishnavaite Shrine Temples), where Vaishnavaite Deities
(Vishnu/Perumal) is there in different postures, namely, Standing Posture,
Sitting Posture and Sayanam, and all these three Postures of God Vishnu are in
three Idols/Garbagraham, namely Sanctum Sanctorum and the Gods were named as
Lord Nindra Nambi, Lord Veetririnda Nambi and Lord Pallikonda Nambi.
(b) In front of the Lord Veetririnda Nambi, there is one Lord Siva
Sannathi (Lingam) called Lord Mahendragirinathar, which had been existence from
time immemorial, as is evidenced by the recitals/Pasurams rendered by
Thirumangai Azhwar.
(c) Even though both Saivaites and Vaishnavaites were different Hindu
religious Sects, but in this Thirukurungudi Temple, both Saivaite and
Vaishavaite are offering worship to both Deities. It is common in Vaishnavaite
that Saivaite Siva Idol is inscripted, likewise, in Siva Temple, Perumal Deity
(Vaishnavaite Deity) has been incripted. For example, in Tirunelveli
Nellaiappar Temple and Palli Konda Perumal Sannathi and in Tiruchendur Lord
Murugan Temple, Perumal (Vaishanavaite Deity) Sannathi (Sanctum Sanctorum) is
separately there and in Chidambaram also, there is separate Sannathi for
Peruamal.
(d) Saint Thirumoolar has also said in his preachings/divine poems that if
any person removes the idol of Siva, it will cause law and order problem/other
chaos/calamities in the State. For example, Ayodhya Babar Masjid problem. So, in
view of the problem, Central Act 42 of 1991 was enacted not to change or modify
or alter the idol or Temple or even restrainment from removing.
(e) The Priests who perform poojas in the Temples of Vaishnavaites
(Vishnu) are called as “Bhattachariyars” and the Priests who perform poojas in
the Temples of Saivaites (Siva) are called as “Sivachariyars”. There was one
custom prevailing in the Thirukurungudi Temple, i.e. the Bhattachariyar will ask
the Sivachariyar as to whether the Lord Mahendragirinathar had His food, i.e. in
Tamil, it is called as @mKJ cz;lhwh@ and that custom has been altered by the
defendants.
(f) On 1.6.2004, Lord Mahendragirinathar Sannathi (Lingam) has been
altered, removed and demolished and hence, there was commotion/opposition from
the general public and so, the plaintiffs, who are the Saivaites, were affected
by the activities of the defendants 1 to 4. The first plaintiff is the President
of Saiva Velalar Association of Thirukurungudi and the second plaintiff is a
native of Thirukurungudi and both of them are following the customs and rituals
of Saivism.
(g) The Temple was under the control of the first defendant-Jeeyar of
Thirukurungudu Jeeyar Madam and the defendants 2 and 3, namely the Commissioner
of H.R. & C.E., Chennai and the Joint Commissioner of H.R. & C.E.,
Palayamkottai, respectively, are the Administrative Officers and they are under
the control of the fourth defendant-State of Tamil Nadu, represented by District
Collector.
(h) Hence, for the reasons stated above, on behalf of all the Saivaites,
both the plaintiffs have come forward with the suit for the following reliefs:-
(hi) to declare that the demolition, removal and relocation the Sannathi
of Lord Mahendragirinathar, situated in North-East of Sanctum Santorum of the
Temple and in front of Veetriruntha Nambi’s (sitting posture) Sannathi within
the premises of Arulmighu Azhagia Nambirayar Temple, Thirukurungudi, to a
different place, is invalid and
(hii) for injunction to subsequently instal the aforesaid Arulmighu
Mahendragirinathar Sannathi in the same place as existed earlier.
During the pendency of the suit, defendants 5 to 9 were impleaded as
parties.
5. The gist and essence of the written statement filed by the first
defendant-Jeeyar Mutt of Thirukurungudi, rep. by its Jeeyar Swamigal, are as
follows:
(a) The plaintiffs are not the regular worshippers of the Arulmighu
Azhagia Nambirayar Temple, Thirukurungudi (hereinafter referred to as ‘the
Temple’), or the Lord Shiva therein. They have no locus-standi to file the suit.
The third defendant-Joint Commissioner, Hindu Religious and Charitable
Endowments Department, Palayamkottai, is an unnecessary party to the suit. The
suit is bad for mis-joinder of party.
(b) The Lord Shiva, while wandering in the Mahendragiri Forests, was
afflicted by some curse and Sri Sundara Paripooranar, the Lord of the Temple
gave Dharshan and requested Him to stay there and that is why the great
Vaishnavaite Saint Thirumangai Azhwar has sung in praise of Lord Shiva and
referred to Him as “Pakkam Nindraar”. The Deity Lord Shiva should be on the side
and cannot be opposite to the Presiding Deity.
(c) The Lord Shiva known as Shri Mahendragirinathar was originally
enshrined on the Hill Top and as the worshippers could not reach there, slowly
the Shrine got defunct and the Linga was brought and placed within the
Vaishnavite Temple and that structure is now being removed, had no foundation
and was apparently put to as a temporary make-shift arrangement at that time. It
was not originally not part of the Temple, but a later addition.
(d) The Temple is a Vaishnavaite Temple under the administration of the
Head of the Mutt, His Holiness The Jeeyar Swamigal. The Mutt had to seek the
help of donors and the TVS Group agreed to renovate the Temple at a cost of
nearly Rs.1 crore and the founder of the TVS Group belonged to the Village of
the Temple and his family members have great devotion to the Deities in the
Temple.
(e) As per the tradition and accepted practice, before taking up the
renovation work, Deiva Prasanam was conducted to seek divine sanction and to
perform the requisite rituals found necessary and to rectify the defects, if
any. The acclaimed Tantric Shri Unnikrishnan was consulted and the divine
ordination disclosed that the then dilapidated Shiva Temple on the North-East of
the Village known as Arulmighu Shri Analleswara Temple be renovated first before
the renovation work in the Arulmighu Azhagiya Nambriyar Perumal Temple.
Accordingly, the same was done.
(f) The Deiva Prasanam further disclosed that the practice of preparation
of Neivediyam in common in Madapalli (Divine Kitchen) in the Temple was not
proper and be discontinued. Since the offering thus made to Lord Shiva was
indignant as constituting as Sesham (residue) and that separate Shrine and
Madapalli be built exclusively for Lord Shiva as per Saastric prescriptions.
These disclosures coincided with the opinion of scholars, Jeeyar Swamigal, who
is the sole Administrator of the Temple, and also various other religious Heads
of eminence and erudite scholars having special knowledge of Aagama Saastras
and most of the devotees expressed their consent to Jeeyer Swamigal’s views.
(g) Renovation work is thus not for removing the Siva Linga but for
providing proper place and eminence appropriate to Lord Shiva as per saastric
prescriptions. The divine ordination and saastric requirements are not
appreciated but objected to by the plaintiffs. If they are true Saivaite
devotees, they should come forward to help the Temple authorities to install the
Shrine of Lord Shiva with a separate Madapalli and greater facilities as
proposed.
(h) In “Aagama Saastras”, there is no absolute bar that an Idol/Linga
Temple cannot be shifted from its place to another under any circumstances.
Prathistha (installation) texts of the Aagama Saastras, permit and make
provision for Punar Nirmanam (re-installation) and prescribes the rules
therefor. The proposal is to ensure and enhance the solemnity and dignity of the
worship of Lord Shiva in the Temple precincts by rectifying the defects
disclosed in the Deiva Prasanam in conformity with Saastric prescriptions with
the constrains of space inside the Temple and not to cast any indignity to the
Lingam as alleged in the plaint.
(i) All the Poojas to the Lord Shiva will be performed as before, with
separate Neivedaya in the new Divine Kitchen after the chance of location to the
right place and hence, the first defendant-Jeeyar of Thirukurungui Mutt prayed
for dismissal of the suit.
6. The gist and essence of the additional written statement filed by the
first defendant-Jeeyar Mutt of Thirukurungudi, represented by its Jeeyar
Swamigal, are as follows:
(a) The Government of Tamil Nadu issued G.O.Ms.No.55, Tamil Development,
Culture and Religious Endowments Department, dated 8.4.2005, ratifying the
action of the Temple authorities in shifting the Shrine of the Lord Shiva and
permitted the consecration in the new Shiva Shrine in granite in the east of
north-east quadrant of the third Prakaram of the Temple with the Sanctum
Sanctorum, the Artha Mandapam, the Maha Mandapam along with the Subordinate
Deities.
(b) The location of the Idol at the proper place cannot affect the
religious sentiments of any worshipper. The religious function of the Head of
the Mutt, is not subject to supervisory control of the H.R.& C.E. Board. The
Azhagiya Nambiraya Perumal Temple required extensive repairs and the structures
were in a dilapidated condition. The Mutt was not in a position to undertake the
renovation work due to financial constraints. The Venugopala Swamy Kainkarya
Trust had been undertaking renovation/restoration of ancient Temples in Southern
India by adopting a holistic approach blending science and ancient wisdom. The
Trust had been involved in the restoration activities of several Temples in
Padaveedu, Tiruvannamalai District, Sri Kapaleeswarar Temple, Chennai, Sri
Nellaiappar Temple, Tirunelveli, and the Temples at Sri Rangam and Tiruttani.
(c) The Temple is unique in its architectural conception and iconographic
formation having three Shrines, dedicated to the Lord Vishnu, in the Standing,
Sitting and Reclining Postures, all facing east as prescribed in Vaikhanasa
Agama, the scripture followed in the Temple. The Shrine of Lord Shiva without
any inscription on its walls or any old architectural details, located in front
of the shrine of the Lord Vishnu, in Sitting Posture and obscuring its view,
indicates that it was probably a construction of more recent times. The Agamas
prescribe that no Shrine should ever be built obscuring the view of another and
the Shrine of Lord Shiva not only goes against Agamic prescriptions, but also
against the architectural conventions and practices prevalent in the State.
(d) On consultation with the experts, who opined that the Shrine was
a later day addition, and the same being also fortified by the presence of the
Bronze Idol belonging to the near-by Shiva Temple, attached to the Nambi Temple,
these would indicate that the Shrine of Lord Shiva should be re-located to the
north-eastern portion within the Temple and it was opined that due honour will
be given to the Lord Shiva.
(e) Before commencing the renovation work, Deva (Deiva) Prasannam was
conducted at the Temple premises in the presence of the first defendant-Jeeyar
of Thirukurungudi Mutt, Agama experts, local public and Sthapathi, among the
various revelations, it was pointed out that the Shiva Shrine needs to be re-
located and a separate kitchen established for preparing food offerings to the
Lord Shiva.
(f) It is to be noted that Mr.A.Krishnamachari earlier filed Writ Petition
No.23193 of 2004, 13382 of 2005 and 18450 of 2005 and he himself is the author
of a Book “Sri Renga Temple Prasanam”, wherein he has praised the ability and
recommendtions of Sri Unnikrishna Panickar who has conducted the Deiva Prasannam
in this case also. In the said Book, it is mentioned that Sri Unnikrishna
Panickar conducted Deiva Prasannam at Nava Thirupathi, Thirukurugudi and
Srivilliputhur and remedial measures ordained were carried out. It is also
specifically stated that due to the efforts taken by Sri Venu Srinivasan, Divya
Desams were renovated and their pristine glory restored.
(g) The Head of the Mutt has taken in the interests of the religion and
worshippers and the decision to shift the Idol was made, and as no new Idol was
to be installed, the sanctity of the Temple would not be diminished. His
Holiness Shri Kanchi Sankaracharya of Kanchi Kamakoti Peetam opined that the
Idol of the Lord Shiva can be re-located as per the Agamic injunctions.
(h) A detailed plan was prepared and care was taken to ensure the
involvement of the local community in the implementation. The entire structure
was carefully removed and all the stones duly preserved and identified. Stone by
stone and without any damage, the Shrine was re-located by scientific methods.
As a part of the renovation work, the Idol of the Lord Shiva with Subordinate
Deities, were to be re-located in the Third Circumambulatory Path (Prakaram),
which is within the Temple.
(i) Re-locating the Shrine of the Lord Shiva within the same Temple does
not and cannot amount to changing the character of the Temple. The character of
the said Temple continues to remain a Vaishnavaite Temple. There is no new
Temple which has been created for the Shiva Deity. There is no violation of the
provisions of “The Places of Worship (Special Provisions) Act, 1991 (Act No.42
of 1991)”.
(j) Besides an expert committee was constituted on 25.2.2003 on the
directions of the Government to go into the issue and the said committee
submitted its report on 31.3.2003, and after considering the report submitted by
the expert committee, the Government issued G.O.Ms.No.55, Tamil Development
Culture and Religious Endowments Department, dated 8.4.2005, ratifying the
action of the Temple authorities in shifting the Shrine of the Lord Shiva to the
north-east quadrant. All the actions of the Head of the Mutt stand validated in
pursuance of the said G.O. issued by the Government. Hence, the first defendant
prayed for dismissal of the suit.
7. The gist and essence of the second additional written statement filed
by the first defendant-Jeeyar Mutt of Thirukurungudi, rep. by its Jeeyar
Swamigal, are as follows:
(a) The fifth defendant-Divya Desa Parampariya Padukappu Peravai, Trichy,
represented by its Secretary and the sixth defendant-Hindu Baktha Jana Sabai
State Committee, through its State President Thiyagarajan, are neither regular
worshippers of the Lord Shiva in the Temple, nor worshippers of the Temple. They
cannot represent the body of persons whom they appear to represent and they are
unnecessary parties.
(b) The Sivan Sannithi was installed recently. In Periya Thirumozhi, sung
by Thirumangai Azhwar, he refers as “Pakkam Nirka Ninra Panbaroor”, which means
“Who Is Standing Besides”. But the said hymn does not denote the Sivan Deity in
question. The Sivan Idol is not on the side of any of the Vishnu Idols and the
Sivan Deity is installed in front of the Vishnu Deity in Sitting Posture. The
“Sthala Puranam” refers to a deity of Sivan in the above Temple, but none of
these texts say that it is more than 1000 years old. The Idols of Lord Vinayagar
and Lord Murugan were installed during Samprokshanam held in 1911 and 1981
respectively. Though there are several references about the “Pakkam Nindra
Sivan” in Tamil Literature works, but none of them refers to the Sivan Idol,
which was installed in front of the Lord Vishnu in the Sitting Posture. All
these references are made only to the Mountain called “Mahendragiri” and the
said Hill is in the form of a “Lingam” and is being referred to as “Pakkam
Nindrar” and only in that context, the Azhwar made the above said references.
(c) There was no foundation for the Lord Sivan Shrine and the pillars over
which the Lord Shiva Shrine stood, are there for any one to see and these six
pillars are of pieces and bits of granite stones and the granite over it, that
is, around the top are also of like nature.
(d) The practice of Pooja by Pothis of Kerala origin is very common in the
Village, so also the seeing of Prasannam. As per the tradition and accepted
practice, Deiva Prasannam was conducted by the acclaimed Tantric Sri
Unnikrishnan to find out the defects, if any, and to rectify the same for the
welfare of the villagers and devotees at large. Deiva Prasannam was conducted on
22.8.1996 and one of the disclosures of the Deiva Prasannam was the renovation
of the Siva Temple situated on the north-east of the Village on the bank of the
River called Lord Analleswarar and the Temple had almost crumbled and was mostly
buried. The work had been taken up with all devotion as per the injunctions in
Deiva Prasannam and the whole Temple was pulled out from the debris, totally
renovated and Saivaite Heads of the Mutts attended the Kumbabishekam of the said
Temple. The Deiva Prasannam also indicated that the Lord Sivan Idol with its
Parivara Devathai, in the Nambirayar Temple, obstructing the view of the Lord
Vishnu, in Sitting Posture, is not proper, and should be re-located in
consultation with Agama experts. The Devia Prasannam further disclosed that the
Lord Sivan should be given due position as a main Deity and not as a Parivara
Devatha, that is, as a Sub-Deity, as per Saiva and Vaikhanasa Agama, underwhich
the entire Temple functions. A separate Madapalli (Divine Kitchen) should be
constructed and Naivedyam has to be prepared separately for the Lord Shiva and
the Lord Vishnu.
(e) The various religious Heads also opined that the Idol of Lord Shiva
can be re-located as per the injunctions of the “Agamas” and approved the same.
The villages who are the regular devotees, have also given a written
representation for re-locating the Lord Shiva Shrine. The Idol of Lord Shiva was
removed as per the “Agama Principles”. After the shifting of Lord Shiva Idol,
the village and the neighbouring villages, had a good rain and cultivation also
improved. Almost all the Lakes in the District got filled.
(f) The character of the Temple is not changed and the re-location of the
Sivan Idol is not against the rules and regulations of the Tamil Nadu H.R. &
C.E. Act. In the present case, although no permission is necessary for shifting,
the Government granted the same by issuing G.O.(Ms).No.55, dated 8.4.2005. There
is no illegality in shifting the Idol from the present position to the Third
Prakaram of the Temple.
(g) First defendant-Jeer as the Head of the Mutt, has control and
management of the entire Temple and he is the authority to decide the religious
matters and his decision cannot be interfered with by anybody. The renovation
work was carried out with the full view of the public and there is no foundation
of the Idol. No valuable stones were kept under the Idol. Even after the
shifting of the Shiva Idol, it continues to be the Lord Vishnu Temple and it has
not changed to any other character. The worshipper can continue to worship Lord
Shiva and Lord Vishnu and there is absolutely no impediment to the worshipper to
worship the Deities.
(h) In any event, the Tantric Unnikrishna Panicker did not suggest to re-
locate for the purpose of TVS Group. On the contrary, it was ascertained the
‘will’ of the Presiding Deity that ‘Deva Prasannam’ was conducted and re-
location was suggested for the well-being of the entire village. The shifting of
the Lord Shiva is only a religious matter. The power of superintendence all over
the Temple under Section 23 of the Tamil Nadu H.R. & C.E. Act will not apply to
the religious function of the Head of the Mutt. Even the Expert Committee
appointed by the Government gave an opinion that the re-location of the Shivan
Idol to the North-East corner of the Third Quadrant (Third Prakaram) of the
Temple is proper and can be done.
(i) The Head of the Mutt has wide and ample powers to change the location,
so that the Idols are placed in appropriate places and in accordance with
“Agamas”. The renovation of Arulmigh Azhagiya Nambirayar Temple was done in
accordance with ‘Agamic’ principle keeping in view of the religious sentiments
of the worshipper. Hence, the D-1 prayed for dismissal of the suit.
8. The nut-shell of the written statement filed by D3, is as follows:
D2-Commissioner of H.R. & C.E. Department, passed an order constituting a
high level committee to pursue the request received from the Jeer Mutt
regarding the re-location of Arulmighu Mahendragirinathar Sannathi and they
submitted a report, opining as follows:
“1. The Shiva Lingam in the main sanctum sanctorum of the Shiva Temple
shall not be re-located.
2. In the Demi-God Temples, if the Shivan Shrine is re-located either
because of its dilapidated condition or because of someone else accidentally, it
would be re-installed in its original place as per the religious customs and
conventions. It could be done by rules of atonement enumerated in Saastras. For
this, the song sung by some individual cannot be taken as guidelines. Further,
the installation of Lingas is of three types, namely Deiviga, Arsha and Manusha.
‘Deiviga’ is the installation made by ‘Devas’. ‘Arsha’ is the installation made
by ‘Rishis’. The ‘Suyambu Lingam” should not be disturbed. The Shiva Linga
available at present belongs to subordinate Deity. It has been made recently.
This Committee opines that the same could be installed again in the appropriate
place as per the practice and Saastric conventions.”
All these proposals are under consideration. The Government of Tamil Nadu
passed a Government Order in G.O.No.58, dated 23.4.1999 granting administrative
and technical consent for Rs.62,95,000/- regarding the construction of the
Temple and performance of consecration to this Shrine. First defendant-Jeer
wrongly taken up in his hands acting independently and performed the “Balalayam”
on 2.6.2004, by demolishing and re-locating Arulmighu Mahendragirinathar Shrine.
First defendant-Jeer did not obtain any permission either to perform “Balalayam”
or for ‘re-locating’ the Shrine. Explanation had been called for from First
defendant, who has given written explanation to D2. The plaintiffs are not
competent to file the suit. Hence, D3 prayed for dismissal of the suit.
9. Shorn of the contents in the additional written statement of D3, are as
follows:
D2 and D3 are the statutory authorities discharging their duties in
accordance with the provisions of the Tamil Nadu H.R. & C.E. Act in the matters
of religious affairs and “Agamas”. They are also empowered to ascertain the
opinion of the religious experts well-versed in “Agamas”. D2 constituted a
Committee which submitted a report on 31.3.2003, and according to the report,
the Siva Linga Idol should not be shifted and it is in the main ‘Karbagraham’
(Sanctum Sanctorum) of the Temple and there is no objection for shifting the
Siva Lingam from the Sub-Shrine of the Temple. In this case, the Shiva Lingam is
not the main “Karbagraham” of the Temple, but remained only as a Sub-Shrine.
Without the knowledge of the H.R. & C.E. Department, the Shiva Linga Idol had
been removed and kept in “Dhanya Vaasam” (inside paddy). The H.R. & C.E.
Administrative Department did not grant any permission either to demolish the
Sivan Sannathi or to remove the Siva Lingam.
10. Short contents of the written statement filed by D5, are as follows:
(a) Arulmighu Azhagiya Nambirayar Perumal Temple at Thirukurungudi Village
is more than 1300 years old. The said Temple has been sanctified by the hymns
of grant Vaishnava Saints, namely Nammazhvar, Thirumangai Azhwar, Periyazhwar
and Thirumazhisai Azhwar. In front of the Lord Veetrirundha Nambi Sannathi, the
Lord Shiva Sannathi had been in existence for more than 1000 years. The Shivan
Deity is called as “Mahendragirinathar”.
(b) In the first hymn of Periya Thirumozhi, sung by the Saint Thirumangai
Azhwar, in the Eighth Century BC, he had referred the Deity Siva as “Pakkam
Nirka Nindra Panbaroe”. The Vedic Period “Sthala Puranam” also had a reference
about the Deity Shivan in the Temple. The Manual of Tirunelveli complied in
1879, which was re-published by Manonmaniam Sundaranar University, had a
reference about Shivan Deity at Chapter 15 page No.404. The Lord Shivan Deity is
situated close to the Deity of Veetrirundha Nambi, as referred to in the
literary work. Poet Haridasar who lived in 16th Century, mentioned the same in
his book “Iru Samaya Vilakkam”.
(c) The age old custom by offering a portion of “Naivediyam” prepared in
the Temple, to the Lord Shiva, had been strictly followed. Thus, the Temple
stood as a mark of good relations among the “Vaishnavaites” and the “Saivaites”.
The Lord Shivan Shrine was there inside the Temple for more than 1000 years as a
mark of religious amity between Vaishnavaities and Saivaites. So far as the
Tamil Nadu State is concerned, the kind of “Prasannam” as alleged by First
defendant in the written statement , is unheard of and there is no legal
sanctity or religious authority for such kind of “Prasannam” in the Tamil Nadu
State. The “Prasannam” and other “thanthirams” are all irrelevant and are all
not accepted as authorities in the Lord Vishnu Temples. The Agamas, traditions
and customs are supreme when compared to “Prasannam”. 48th Jeer of D-1 / Mutt
has vehemently resisted the plan for removal of Sivan Sannathi from the Temple
till his death on 24.2.2004. After the present Jeer of D-1/Mutt assumption of
Office, the removal of Sivan Sannithi was effected.
(d) In fact, the purported reason for blasting the Sivan Sannithi from the
present location, is said to be the advise of Tantric Unnikrishnan to the TVS
Group, because Sivan Deity is blocking the Veetrirundha Nambi, affecting the TVS
Group family and if the said Deity is shifted from the said location, it would
have been benevolent to the said Tantric Unnikrishnan, who is a consultant in
such mystical matters for politicians and other powerful persons. First
defendant and the other so-called religious leaders, are all recipients directly
or indirectly in respect of Lord’s contributions made by TVS Group of Companies
and from various descendants of TVS Group and First defendant and other
religious leaders seem to have accorded their approval for such demolition.
(e) The entire operation has nothing to do with the renovation of
religious or spiritual purpose and the only purpose for which the blasting was
done was for selfish purpose and approval from the so-called religious leaders,
founded on financial contributions. D2 and D3 have not acted diligently and all
the norms are flouted. Hence, D5 prayed for restoration of the Lord Shiva in the
original place within a stipulated time.
11. The sum and substance of the written statement filed by D6, is as
follows:
The Hindu Public Religious Institute is a Trust and once the Temple is
built, idols are consecrated and dedicated to the Universe, the Trust is
complete. The Trustees, whether they are hereditary trustees or non-hereditary
trustees, or Madathipathis, have no right to change the existing statues. The
wish of the Founder of the Trust and dedication by the Founder, cannot be
interfered with by a Trustee. The Trustees have no right to change the position
of the Idols installed or to shift the Idols from one place to another. The
importance of Arulmighu Azhagiya Nambirayar Temple at Thirukurungudi, is the
existence of the Lord Shiva by the side of the Lord Vishnu in Standing Posture,
and described as “Pakkam Nindrar”. Hence, D6 prayed for restoration of Lord
Shiva Idol in original form.
12. The brief contents of the written statement filed by D7 to D9, are as
follows:
(a) The plaintiffs, D5 and D6 are neither the regular worshippers of the
Temple, nor the worshippers of Lord Shiva in the Temple. The villagers and
residents, for unknown reasons, did not experience prosperity and there was
unhappiness all-round. The Head of the Mutt, realising the difficult conditions
faced by the villagers, took the lead in obtaining expert opinion on the issue.
As per the tradition and accepted practice, “Deva Prasannam” was conducted by
the acclaimed Tantric Shri Unni Krishna to find out the defects, if any and to
rectify the same for the welfare of the villagers and devotees at large. The
“Deva Prasannam” was conducted on 22.8.1996, in which it was suggested to
predict the course of action for the welfare of the people of the village at
large and the renovation / rectification / modification of the Temple, is part
of it.
(b) Shifting of the Lord Shiva Idol was one among the suggestions in “Deva
Prasannam”. There had been no rain or scanty rain and the villagers in general
suffered. This necessitated the calling of Shri.Unni Krishnan and the conduct of
“Deva Prasannam”. He was not called for shifting of Shiva Shrine. One of the
well known methods is to ascertain the ‘will’ of the Deity by “Deva Prasannam”
and the renovation / rectification / modification of the Temple, was performed
one by one in due course of time and the only thing that remains is the
“Kumbhabhishekam” of the Shivan Deity in the newly built Shrine.
(c) The villagers could perceive and live a better life than before. The
faith of the villagers could never be questioned nor decided by a Court of Law
and the same is not justifiable. Hence, the suit is not maintainable. The
villagers can now have a free Dharshan of the Lord Veetrirundha Nambi as well as
Lord Shiva. All the villagers who were present at the time of “Deva Prasannam”
also requested First defendant to take steps to remove the defects that emerged
during the “Deva Prasanna”. First defendant also ascertained the views of
experts on Agamas. Only thereafter, First defendant took decision to re-locate
the Idol of Lord Shiva and the said decision was fully endorsed by the villagers
who are the worshippers at the Temple.
(d) The new Shrine appears to have been built using the very same stones
and in the very manner. To the knowledge of D7 to D9, the Idol of Lord Murugan
was consecrated only in 1981 and that of the Idol of Lord Vinayagar, some where
in 1911. No damage was caused to any of the Idols. There were no valuable stones
or parts under any of the Idols. Only a copper plate and some stones which are
not precious, were recovered under the Idol of Lord Subrahmanya.
(e) After the decision to re-locate, the villagers had bountiful rains and
good harvest. There has been all-round prosperity in the Village. There has also
been no change in the character of the Temple and the worshippers can continue
to worship the Lord Vishnu or the Lord Shiva. In fact, the earlier location of
the Lord Shiva was very old and there was no proper Shrine. The new structure is
at the appropriate location. In fact, the religious sentiments of Saivaites were
also fully taken care of in the sense that the stones which formed the structure
of the Shiva Deity, were numbered and removed one by one and were re-laid as per
the numbers in the “Karbhagraha” (sanctum sanctorum) of the newly built Shrine
of the Lord Shiva. Therefore, D7 to D9 prayed for dismissal of the suit.
13. On the basis of the pleadings and arguments advanced by learned
counsel on both sides, the trial Court framed necessary issues and considering
the oral and documentary evidence, the trial Court decreed the suit as prayed
for by the plaintiffs, against which, D1 to D3 and D7 to D9 preferred First
Appeals and the first appellate Court allowed those First Appeals and dismissed
the suit. Challenging the same, the plaintiffs and D5 and D6 have preferred the
present Second Appeals. The proposed parties before the first appellate Court,
whose I.As. for impleadment, were dismissed by the first appellate Court on the
date of disposal of the First Appeals, have preferred a petition before this
Court seeking leave to appeal in S.A.S.R.No.16491 of 2010.
14. At the time of admission of Second Appeal (MD).No.1075 of 2009, the
following substantial questions of law were framed for consideration, which
would apply to all the Second Appeals:
“(i) Whether the lower appellate Court is right in disposing of the First
Appeal, without framing proper points for determination under Order 41 Rule 31,
CPC ?
(ii) Whether the lower appellate Court is right in holding that the
plaintiffs have no locus-standi to file the suit ?
(iii) Whether the lower appellate Court is right in holding that as per
G.O.(Ms).No.55, dated 8.4.2005, the H.R.& C.E. Department, has ratified the
shifting of the Idol of Lord Shiva, when especially the Division Bench of this
Court has directed the lower Court to decide the suit, without reference to
G.O.(Ms).No.55, dated 8.4.2005 ?
(iv) Whether the lower appellate Court is justified in holding that the
shifting of the Idol Lord Shiva was done on the basis of the Deva Prasannam,
without any reference to the Agama Saastrams ?
(v) Whether the lower appellate Court is right in holding that the first
defendant, viz., Jeer, has got power to make changes, which according to him, is
against Agama Saastras ?
(vi) Whether the lower appellate Court is right in holding that the
shifting of the Idol of Lord Shiva is correct and it is in accordance with Agama
Saastras, without making it clear the relevant Agama Saastras to that effect ?
(vii) Whether the lower appellate Court is right in allowing the First
Appeal, when admittedly the Idol of Lord Shiva was shifted and the defendants
failed to establish that the shifting of Idol of Lord Shiva was in accordance
with Agama Saastras or other religious text ?
(viii) Whether the lower appellate Court is justified in rendering the
judment without disposing of the applications filed under Order 1 Rule 8(5) CPC
and Order 1 Rule 10(2) of CPC ?
(ix) Whether the lower appellate Court is right in placing the burden on
the appellants to prove that the shifting of Lord Shiva is against the Agama
Saastras ? and
(x) Whether the lower appellate Court is right in rendering the judgment,
when Tr.O.P.Nos.148 and 149 of 2009 were filed and pending, on the file of the
Principal District Judge, Tirunelveli, wherein, serious allegations were made
against the learned Sub-Judge, Valliyoor, who disposed of the appeal ? ”
15. At the time of admission of S.A.(MD).No.1075 of 2009, the above ten
substantial questions of law were framed by this Court and at the time of
admission of S.A.(MD).No.176 of 2010, it was specifically observed by this Court
that the above ten substantial questions of law are sufficient to dispose of
S.A.(MD).No.176 of 2010 also. The same would also apply to the other appeal in
S.A.(MD).No.646 of 2010. Hence, the above ten substantial questions of law cover
all the three Second Appeals.
16. Substantial question of law (i)
Whether the lower appellate Court is right in disposing of the First
Appeal, without framing proper points for determination under Order 41 Rule 31,
CPC ? It is worthwhile to refer Order 41 Rule 31 of CPC, which reads as follows:
Order 41: Appeals from Original Decrees:
Rule 31: Contents, date and signature of judgment.– The judgment of the
Appellate Court shall be in writing and shall state–
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or
by the Judges concurring therein.
High Court Amendment (Madras): Substitute the following for R.31:
“31. The judgment of the Appellate Court shall be in writing and shall
state.–(a) the points for determination; (b) the decision thereon; (c) the
reasons for the decision; and (d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled; and shall bear the date
on which it is pronounced and shall be signed by the Judge or the Judges
concurring therein:
Provided that, where the presiding Judge is specially empowered by the
High Court to pronounce his judgment by dictation to a shorthand-writer in open
Court the transcript of the judgment so pronounced shall, after such revision as
may be deemed necessary be signed by the Judge.”
17. Learned counsel appearing for the plaintiffs submitted that the first
appellate Court has not given opportunity to them to put forth their arguments
and it heard the arguments of the defendants and without framing proper points
for determination so as to comply with the provisions of under Order 41 Rule 31
CPC, the judgment had been pronounced and hence, the judgment and decree of the
first appellate Court are liable to be set aside.
18. On the other hand, the learned Senior Counsel and the other counsel
for the defendants submitted that even though the first appellate Court has not
specifically framed the points for determination, it has dealt with the issues
framed and decided by the trial Court and so, as per the decisions of the
Supreme Court reported in 2006 (3) SCC 224 = 2007 (1) L.W. 869 (G.Amalorpavam &
Others Vs. R.C.Diocese of Madurai and others) and 2008 (2) SCC 728 (Nopany
Investments (P) Ltd. Vs. Santokh Singh (HUF)), it is not a ground for setting
aside the judgment and decree of the first appellate Court.
19. While considering the rival submissions of both sides, it is
appropriate to see as to whether the said decisions of the Supreme Court are
applicable to the facts of the present case with regard to the non-framing of
points for determination by the first appellate Court while rendering the
judgment.
20. In the decision reported in 2006 (3) SCC 224 = 2007 (1) L.W. 869
(G.Amalorpavam & Others Vs. R.C.Diocese of Madurai and others), the Supreme
Court held as follows:
“9. The question whether in a particular case there has been substantial
compliance with the provisions of Order 41 Rule 31 CPC has to be determined on
the nature of the judgment delivered in each case. Non-compliance with the
provisions may not vitiate the judgment and make it wholly void, and may be
ignored if there has been substantial compliance with it and the second
appellate court is in a position to ascertain the findings of the lower
appellate court. It is no doubt desirable that the appellate court should comply
with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make
out from the judgment that there is substantial compliance with the said
requirements and that justice has not thereby suffered, that would be
sufficient. Where the appellate court has considered the entire evidence on
record and discussed the same in detail, come to any conclusion and its findings
are supported by reasons even though the point has not been framed by the
appellate court there is substantial compliance with the provisions of Order 41
Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a
point of determination. Where there is an honest endeavour on the part of the
lower appellate court to consider the controversy between the parties and there
is proper appraisement of the respective cases and weighing and balancing of the
evidence, facts and the other considerations appearing on both sides is clearly
manifest by the perusal of the judgment of the lower appellate court, it would
be a valid judgment even though it does not contain the points for
determination. …”
(emphasis supplied)
21. In the decision of the Supreme Court reported in 2008 (2) SCC 728
(Nopany Investments (P) Ltd. Vs. Santokh Singh (HUF)), the Apex Court observed
as follows in paragraphs 15 and 18:
“15. In our view, it is difficult for us to set aside the findings of the
High Court on the question whether the first appellate court, while deciding the
questions of fact and law, had complied with the requirements under Order 41
CPC. We are in agreement with the findings of the High Court as on a perusal of
the judgment of the first appellate court, it does not appear to us that the
findings arrived at by the first appellate court affirming the judgment of the
trial court on any issue were either very cryptic or based on non-consideration
of the arguments advanced by the parties before it. …”
“18. In view of our discussions made hereinabove, we are, therefore,
unable to agree with the learned Senior Counsel for the appellant Mr Gupta that
the High Court was not justified in holding that the findings of the first
appellate court were in compliance with Order 41 CPC. That apart, the learned
Senior Counsel for the appellant Mr Gupta could not satisfy us or even point out
the specific issues which, in his opinion, had been left to be addressed by the
first appellate court. In view of the discussions made hereinabove, we are,
therefore, of the view that no ground was made out by the appellant to set aside
the judgment of the High Court on the question whether the judgment of the first
appellate court was liable to be set aside for non-compliance with the mandatory
provisions of Order 41 CPC.”
22. While applying the abovesaid decisions of the Apex Court to the facts
of the present case, and also considering the judgment and decree of the first
appellate Court, it is seen that the first appellate Court in this case has
considered all the issues and it has also deliberated on the issues framed by
the trial Court, even though the first appellate Court did not frame any point
for determination and so, I am of the view that as per the decisions reported in
2006 (3) SCC 224 (cited supra) and 2008 (2) SCC 728 (cited supra), the impugned
judgment and decree of the first appellate Court are not vitiated by the absence
of framing the points for determination. Substantial question of law (i) is
answered accordingly.
23. Substantial question of law (ii):
Whether the lower appellate Court is right in holding that the plaintiffs
have no locus-standi to file the suit ?
Learned counsel appearing for the plaintiffs submitted that the suit has
been filed under Order 1 Rule 8 C.P.C. for collective interest of the persons
and the application filed under Order 1 Rule 8 C.P.C. had been allowed.
Moreover, the locus-standi of the plaintiffs to file the suit has been upheld in
Ex.C-5 which is the judgment dated 3.10.2005 passed by the Division Bench of
this Court in Writ Appeal No.1204 of 2005, etc., batch cases. Furthermore, the
plaintiffs are the devotees and they are the worshippers and so, the first
appellate Court committed error in coming to the conclusion that the plaintiffs
have no locus-standi to agitate the case, whereas the trial Court considered
this aspect and came to the correct conclusion that the plaintiffs were
competent to agitate the suit. Learned counsel for the plaintiffs further
submitted that the arguments advanced by the first defendant-Jeeyar of
Thirukurugudi Mutt that the plaintiffs are not the regular worshippers of the
Temple in question, and there is no pleading to that effect in the plaint and
so, the first defendant attacked the locus-standi of the plaintiffs.
24. Per contra, learned Senior Counsel for the defendants submitted that
the suit was filed by the plaintiffs in a representative capacity of the
Saivaites and the first plaintiff-Chockalingam was the Head of the Saivaite
Vellala Sangam and the second plaintiff-Sundarasubramanian belongs to
Thirukurungudi Village; the first defendant-Jeeyer of Thirukurungudi Mutt in
paragraph 2 of the first written statement filed by him, stated that the
plaintiffs are not even the regular worshippers of the Temple or the Shrine of
the Lord Shiva therein.
25. While considering the arguments advanced on either side, it is seen
that the plaintiffs have filed the suit in a representative capacity and they
are competent to file the same being the worshippers of the Temple. In this
connection, it is worthwhile to refer Articles 25 and 26 of the Constitution of
India, as follows:
“Article 25: Freedom of conscience and free profession, practice and propagation
of religion:–(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law
or prevent the State from making any law–
(a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.
Explanation I.–The wearing and carrying of kirpans shall be deemed to be
included in the profession of the Sikh religion.
Explanation II.–In sub-clause (b) of clause (2), the reference to Hindus shall
be construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly.”
“Article 26: Freedom to manage religious affairs:
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;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
26. Regarding the aspect of “religion” and “dharma” in conjunction with
Articles 25 and 26 of the Constitution of India, learned counsel for First
defendant-Jeer relied on a decision of the Supreme Court reported in 1996 (9)
SCC 548 (A.S.Narayana Deekshitulu Vs. State of .P), wherein, the Apex Court has
quoted in detail, as under:
“Articles 25 and 26 of the Constitution of India deal with and protect
religious freedom. Religion as used in these Articles must be construed in its
strict and etymological sense. Religion is that which binds a man with his
Cosmos, his Creator or super force. Essentially, religion is a matter of
personal faith and belief of personal relations of an individual with what he
regards as Cosmos, his Maker or his Creator which, he believes, regulates the
existence of insentient beings and the forces of the Universe. Religion is not
necessarily theistic.”
“Dharma embraces every type of righteous conduct covering every aspect of
life essential for the sustenance and welfare of the individual and the society
and includes those rules which guide and enable those who believe in God and
heaven to attain moksha (eternal bliss). Rules of dharma are meant to regulate
the individual conduct, in such a way as to restrict the rights, liberty,
interest and desires of an individual as regards all matters to the extent
necessary in the interest of other individuals, i.e., the society and at the
same time making it obligatory for the society to safeguard and protect the
individual in all respects through its social and political institutions.
Shortly put, dharma regulates the mutual obligations of individual and the
society. The word ‘dharma’ or ‘Hindu dharma’ denotes upholding, supporting,
nourishing that which upholds, nourishes or supports the stability of the
society, maintaining social order and general well-being and progress of
mankind; whatever conduces to the fulfilment of these objects is dharma, it is
Hindu dharma and ultimately “Sarva Dharma Sambhava”. Dharma is that which
approves oneself or good consciousness or springs from due deliberation for
one’s own happiness and also for welfare of all beings free from fear, desire,
disease, cherishing good feelings and sense of brotherhood, unity and friendship
for integration of Bharat. This is the core religion to which the Constitution
accords protection.”
“A religion undoubtedly has its basis in a system of beliefs and doctrine
which are regarded by those who profess religion to be conducive to their
spiritual well-being. But a religion is not merely an opinion, doctrine or
belief. It has outward expression in acts as well. It is not every aspect of
religion that has been safeguarded by Articles 25 and 26 nor has the
Constitution provided that every religious activity cannot be interfered with.
Every religion must believe in a conscience and ethical and moral precepts. …
The approach to construe the protection of religion or matters of religion or
religious practices guaranteed by Articles 25 and 26 must be viewed with
pragmatism since by the very nature of things, it would be extremely difficult,
if not impossible, to define the expression religion or matters of religion or
religious belief or practice.”
“The right to religion guaranteed under Article 25 or 26 is not an
absolute or unfettered right to propagating religion which is subject to
legislation by the State limiting or regulating any activity – economic,
financial, political or secular which are associated with religious belief,
faith, practice or custom. They are subject to reform on social welfare by
appropriate legislation by the State. Though religious practices and
performances of acts in pursuance of religious belief are as much a part of
religion as faith or belief in a particular doctrine, that by itself is not
conclusive or decisive. What are essential parts of religion or religious belief
or matters of religion and religious practice is essentially a question of fact
to be considered in the context in which the question has arisen and the
evidence – factual or legislative or historic – presented in that context is
required to be considered and a decision reached. The Court, therefore, while
interpreting Articles 25 and 26 strikes a careful balance between the freedom of
the individual or the group in regard to religion, matters of religion,
religious belief, faith or worship, religious practice or custom which are
essential and integral part and those which are not essential and integral and
the need for the State to regulate or control in the interest of the community.”
“The religious freedom guaranteed by Articles 25 and 26, therefore, is
intended to be a guide to a community life and ordain every religion to act
according to its cultural and social demands to establish an egalitarian social
order. The protection of Articles 25 and 26 of the Constitution is not limited
to matters of doctrine. They extend also to acts done in furtherance of religion
and, therefore, they contain a guarantee for rituals and observances, ceremonies
and modes of worships which are integral parts of the religion. Articles 25 and
26, therefore, strike a balance between the rigidity of right to religious
belief and faith and their intrinsic restrictions in matters of religion,
religious belief and religious practices and guaranteed freedom of conscience to
commune with his Cosmos, Creator and realise his spiritual self. Sometimes,
practices religious or secular, are inextricably mixed up. This is more
particularly so in regard to Hindu religion because under the provisions of the
ancient Smriti, human actions from birth to death and most of the individual
actions from day-to-day are regarded as religious in character in one facet or
the other. They sometimes claim the religious system or sanctuary and seek the
cloak of constitutional protection guaranteed by Articles 25 and 26. ….. The
practice in question is religious in character and whether it could be regarded
as an integral and essential part of the religion and if the Court finds upon
evidence adduced before it that it is an integral or essential part of the
religion, Article 25 accords protection to it. Though the performance of certain
duties is part of religion and the person performing the duties is also part of
the religion or religious faith or matters of religion, it is required to be
carefully examined and considered to decide whether it is a matter of religion
or a secular management by the State. Whether the traditional practices are
matters of religion or integral and essential part of the religion and religious
practice protected by Articles 25 and 26 is the question here.”
“The Act (A.P. Charitable and Hindu Religious Institutions and Endowments
Act, 1987) regulates administration and maintenance of charitable and Hindu
religious institutions and endowments in their secular administration. It lays
emphasis on preserving Hindu dharma and performance of religious worship,
ceremonies and poojas in religious institutions according to their prevailing
Sampradayams and Agamas. …”
“There is a distinction between religious service and the person who
performs the service; performance of the religious service according to the
tenets, Agamas, customs and usages prevalent in the temple etc., is an integral
part of the religious faith and belief and to that extent the legislature cannot
intervene to regulate it. ….”
“A conjoint reading of Sections 13 and 142 of the Act preserves the
existing customs, performances, religious worships, ceremonies and poojas
according to Sampradayams and Agamas followed in such institutions. Section 142
issues an injunction against an officer from interfering with such observances.
Yet it would not, by operation thereof, amount to revival of what has been
expressly abolished under Section 34(1)(b) of the Act. … … The further
contention is that interference with matters based on custom or usage relating
to “religious institution” as defined in Section 2(23) amounts to interference
with the freedom of conscience and free practice of religion. Therefore, it is
violative of Article 25(1) and is untenable in law. As held earlier, being
secular actions they are not integral parts of the religion or religious
matters.”
“The further contention that the power of transfer under Section 39 is
within the grinding teeth of Article 25(1) is also not acceptable. Sections 13
and 142 would take care of the apprehended catastrophe. On mere apprehension,
Section 39 cannot be declared to be ultra vires. If in any individual case any
transfer was effected of a person who had no accomplishment of Agamic rules,
customs, practices or sampradayams applicable to that particular temple, it
would be considered and dealt with accordingly. It cannot be expected that the
Commissioner would act in violation thereof and would act in a way inconsistent
with Sections 13 and 142. Each case would be considered on its own merits and
correctness of such transfer would be tested in an appropriate proceedings.
Therefore, on that score alone, Section 39 cannot be declared arbitrary or ultra
vires or unjust.”
“Very often the words ‘religion’ and ‘dharma’ are used to signify one and
the same concept or notion; to put it differently, they are used
interchangeably. This, however, is not so, the word ‘religion’, as used in
Articles 25 and 26 of the Constitution cannot be confined, cabined and crabbed,
to what is generally thought to be religion. The word religion in the two
Articles has really been used, not as is colloquially understood by the word
religion, but in the sense of it comprehending our concept of dharma. The
English language having had no parallel word to dharma, the word religion was
used in these two Articles. It is a different matter that the word dharma has
now been accepted even in the English language, as would appear from Webster’s
New Collegiate Dictionary.”
“The sings and symptoms of dharma are that which has no room for narrow-
mindedness, sectarianism, blind faith, and dogma. The purity of dharma,
therefore, cannot be compromised with sectarianism. A sectarian religion is open
to a limited group of people whereas dharma embraces all and excludes none. This
is the core of our dharma, our psyche. Having love for all human beings is
dharma. Helping others ahead of one’s personal gain is the dharma of those who
follow the path of selfless service. Defending one’s nation and society is the
dharma of soldiers and warriors. In other words, any action, big or small, that
is free from selfishness is part of dharma.”
“The word ‘religion’ in Articles 25 and 26 has to be understood not in a
narrow sectarian sense but encompassing our ethos of “Sarve Bhavanthu Sukinaha”.
Let us strive to achieve this; let us spread the message of our dharma by
availing and taking advantage of the freedom guaranteed by Articles 25 and 26 of
our Constitution.”
27. Learned counsel for First defendant-Jeer relied on the decision of the
Apex Court reported in AIR 1959 SC 860 (Sarup Singh Vs.State of Punjab), in
which the Supreme Court held as follows:
“The distinction between Clauses (b) and (d) of Article 26 of the
Constitution of India, strikes one at once. So far as administration of its
property is concerned, the right of a religious denomination is to be exercised
in accordance with law, but there is no such qualification in Clause (b).
The administration of its property by a religious denomination has thus
been placed on a different footing from the right to manage its own affairs in
matters of religion. The latter is a fundamental right which no legislature can
take away, whereas the former can be regulated by laws which the legislature can
validly impose.
Freedom of religion in our Constitution is not confined to religious
beliefs only, but extends to essential religious practices as well, subject to
the restrictions which the Constitution has laid down. Under Art.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 religions they hold.”
(emphasis supplied)
28. Learned counsel for First defendant-Jeer further relied upon the
judgment of the Apex Court reported in AIR 1961 SC 1402 (Durgah Committee Vs.
Hussain Ali), wherein, the Apex Court held as follows:
“Matters of religion in Art.26(b) of the Constitution include even
practices which are regarded by the community as part of its religion. In order
that the practices in question should be treated as a part of religion, they
must however be regarded by the said religion as its essential and integral
part; otherwise even purely secular practices which are not an essential or an
integral part of religion, are apt to be clothed with a religion form and may
make a claim for being treated as religious practices within the meaning of
Art.26. Similarly, even practices though religious may have sprung from merely
superstitious beliefs and may in that sense, be extraneous and unessential
accretions to religion itself. Unless such practices are found to constitute an
essential and integral part of a religion, their claim for the protection under
Art.26 may have to be carefully scrutinised; in other words, the protection must
be confined to such religious practices as are an essential and an integral part
of it and no other.”
29. Learned counsel for First defendant-Jeer further relied on a decision
of the Supreme Court reported in AIR 1972 SC 1586 (E.R.J.Swami Vs. State of
Tamil Nadu), wherein the Apex Court observed as follows:
“The protection of Articles 25 and 26 is not limited to matters of
doctrine or belief. They extend also to acts done in pursuance of religion and
therefore contain a guarantee for rituals and observances, ceremonies and modes
of worship which are integral parts of religion. What constitutes an essential
part of a religious or religious practice, has to be decided by the Courts with
reference to the doctrine of a particular religion and include practices which
are regarded by the community as a part of its religion.”
30. While considering the above decisions relied on by learned counsel for
the first defendant-Jeer, the protection guaranteed under Articles 25 and 26 of
the Constitution of India,is not limited to the matters of doctrine or belief
and that they extend also to the acts done in pursuance of religion, and
therefore, contain a guarantee for rituals and observances, ceremonies and modes
of worship, which are integral parts of religion. In the present case, the
worship of the Lord Shiva in the “Karbhagraham” (Sanctum Sanctorum) in front of
the Lord Veetrirundha Nambhi or where the new Shrine has been constructed in the
Third Pragaram (III Quadrant), has to be decided by this Court. As per the above
decisions, the worshipper has every right to worship the Deity as and where the
same was originally installed.
31. Learned counsel for the first defendant-Jeer submitted that the
plaintiffs are not the worshippers and they have no locus-standi to file the
suit, and hence, it is worthwhile to refer the book titled, “V.K.Varadachari’s
Law of Hindu Religious and Charitable Endowments”, Revised by Dr.R.Prakash,
Advocate, Supreme Court, Fourth Edition 2005, Published by Eastern Book Company,
Lucknow, which is relied on by the learned counsel for the plaintiffs, in which,
it is noted by the renowned author with regard to the meaning of “worshipper” in
page 565, as follows:
“The word worshipper does not mean only those persons who engage
themselves in some sort of rituals for performing worship. It has a wide
meaning. Thus, a person merely visiting some temple and after paying his
respects goes away, is also a worshipper. A pujari, devotee, archaka, sewak,
person coming to have darshan and pay respect are all included in ‘worshipper’.
Even a single annual visit is sufficient to make one as worshipper of a
particular deity. A person may not have even gone to some temple, even then if
he is devoted to that particular one, he will be a worshipper.”
(emphasis supplied)
32. The first plaintiff was the President of Saiva Velalar Association of
Thirukurungudi. Further, even though there is no pleading that the second
plaintiff is the worshipper of the Temple, as per the evidence of P.W.1 (first
plaintiff), the second plaintiff is the native of Thirukurungudi who has
worshipped in the Thirukurungudi Temple and in such circumstances, I am of the
view that the plaintiffs are the worshippers of the Lord Shiva in the Temple.
33. Learned counsel for the plaintiffs submitted that the plaintiffs are
the “persons interested” and so, they are entitled to file the suit. In this
regard, it is useful to refer the definition of the expression “person having
interest” as enunciated Section 6(15) of the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959 (for shot, “the H.R. & C.E. Act”), as follows:
“6. Definitions.–In this Act, unless the context otherwise requires–
..
(15) “person having interest” means–
(a) in the case of math, a disciple of the math or a person of the
religious persuasion to which the math belongs;
(b) in the case of a temple, a person who is entitled to attend at or is
in the habit of attending the performance of worship or service in the temple,
or who is entitled to partake or is in the habit of partaking in the benefit of
the distribution of gifts thereat;
(c) in the case of a specific endowment, a person who is entitled to
attend at or is in the habit of attending the performance of the service or
charity, or who is entitled to partake or is in the habit of partaking in the
benefit of the charity;”
34. As held in the decision relied on by the learned counsel for the
plaintiffs, reported in 1995 Supp (4) SCC 286 (Most Rev.P.M.A. Metropolitan Vs.
Moran Mar Marthoma), in which, the Supreme Court referred to its another
judgment reported in 1970 (3) SCC 831 = AIR 1971 SC 2540 = 1971 (2) SCR 836
(Ugam Singh Vs. Kesrimal), right to worship is a civil right, which can be
subject matter of a civil suit and if there is any infringement, the person
whose right has been prevented, has every right to work out his remedy before
civil forum. Are religious rights, for instance, right to worship in a religious
place, entry in a Temple, administration of religious shrines for instance a
Temple, Mosque or a Church, are rights of civil nature? Religion in India has
always been ritualistic. The Muslim rulers were by and large tolerant and
understanding. They made India their home. They invaded, ruled and became
Indian. But Britishers made it a colony. However they did not interfere with
religion. Disputes pertaining to religious office including performance of
rituals were always decided by the Courts established by law. There are numerous
authorities where dispute about entry in the Temple, right to worship,
performing certain rituals, have been taken cognizance of and decided by civil
Courts. The Court protects persons in the enjoyment of a certain status or
property and it may incidentally become the duty of the Civil Court to determine
what are the accepted tenets of the followers of a creed and what is the usage
they have accepted as established for the regulation of their rights inter-se.
As per the decision of the Supreme Court reported in 1970 (3) SCC 831 = AIR 1971
SC 2540 = 1971 (2) SCR 836 (Ugam Singh Vs. Kesrimal), the right to worship is a
civil right, which can be subject matter of a civil suit.
35. Even though P.W.1, the first plaintiff in his evidence stated that he
has not pleaded that he is the worshipper, but he has stated that he belongs to
Saivaite Community and he was the President of Thirukurungudi Saivaite Vellala
Sangam and the second plaintiff belongs to Thirukurungudi Village and he was
doing service to Saivaite community. The first plaintiff, along with the
villagers of Thirukurungudi, sent a representation Ex.B-37, to the
Government/H.R. & C.E. Department praying not to remove the Idol of Lord Shiva
from the place where it was situated. While considering the cross-examination of
P.W.1, he has stated that he has visited the Temple frequently and so, as per
the definition of the expression “person having interest” in the H.R. & C.E.
Act, even a single visit to a Temple is enough for considering a person to be a
“worshipper” and in such a situation, the argument advanced by the learned
Senior Counsel for the defendants that the plaintiffs are not the worshippers,
and they have no locus-standi to file the suit, does not merit acceptance.
36. Learned Senior Counsel for the defendants submitted that the suit was
filed on behalf of the Saivaites in general and not on behalf of the worshippers
of the suit-Temple, and the suit-Temple is a Vaishnavaite Temple and it is one
among the “108 Divya Desams” of the Lord Vishnu and so, the defendants 7 to 9
who are opposing the plaintiff’s claim, were impleaded as parties to the suit,
and only the “person interested” in the well-being of the Temple can only file
the suit in a representative capacity and not the plaintiffs as in the present
case.
37. Learned counsel for First defendant-Jeer relied on a decision of a
Division Bench of this Court reported in Vol.91 L.W. 205 (Kumudavalli Ammal
alias Kuppammal Vs. P.N.Purushotham), wherein, it was held as follows:
“5. …. It should be established that the persons, who are complaining
against the administrators of the trust have a real interest in praesenti and
not a mere sentimental interest. The purposeful use of the expression “two or
more persons having a direct interest in the trust” was intended to widen the
class of persons entitled to institute the suit under the section (Section 92
CPC). Here again, the interest should be real, substantive and an existing
interest, and not a mere remote, fictitious or contingent one. It would,
therefore, appear from the meaningful expansion of the word ‘interest’ in
Section 92 CPC, that a person in order to lay a suit under it should plead and
establish that he has some tangible interest towards the maintenance and
progress of the public trust. …. …. What is to be primarily established is
that the suit relates to a trust created for a public purpose, (2) it should
contain allegations against the persons-in-breach, such as breach of trust,
misappropriation or mismanagement, and (3) the necessity in the particular
circumstance of a given case for administration of the trust by a body other
than the body in management. If two or more persons having an interest in the
trust file such a suit, then it is maintainable. ….”
“7. …. It is not necessary that a particular person to have an interest
under Section 92 CPC, should be personally interested or personally affected by
any act done by the administrator of the trust. If it could be established that
they are interested in the proper conduct and running of the trust and are
involuntarily involved in evincing interest in its being regulated and conducted
in accordance with the terms of the trust, it could reasonably be said that
such a person has enough of an interest in the trust concerned.”
38. Learned counsel for First defendant-Jeer also relied on the decision
reported in Vol.100 L.W. 182 (Guhan etc., S. Vs. Rukmini Devi Arundale, etc.),
in which, the Division Bench of this Court held as follows:
“One of the requirements of Section 92 CPC is that it will be obligatory
on the part of the plaintiff in such a suit while seeking for a direction to
aver in the plaint about any ‘necessity’ existing for a direction to be issued
for the administration of the Trust. For this purpose, the plaintiff has to give
details in the plaint as to how the affairs of the Trust are being carried out
and as to what are the circumstances which had occasioned and which could not be
prevented, but for the directions being issued by Court. The ‘Necessity’ for
moving the Court for direction has to be spelt out, by referring to the relevant
facts and circumstances. The plaint nowhere states as to what was the machinery
existing during the five decades of its existence, and how far the existing
machinery was not adequate and that it has now become necessary, to get
directions of Court for its administration. As the plaint is totally silent
regarding the particulars of the machinery which has been existing for five
decades, and what necessity had arise to evolve a different method of managing
and administering the Trust, it is held that a fundamental pre-requisite to
maintain a suit under Section 92 CPC is absent in the plaint. On the basis of
such an ill-drafted plaint, which does not contain required particulars making
out necessity to issue directions, the suit under Section 92 CPC is not
maintainable.”
39. The decision reported in AIR 1961 SC 1720 (Sinha Ramanuja Vs. Ranga
Ramanuja), relied on by learned counsel for First defendant-Jeer, does not apply
to the facts of the present case, as it deals with the dispute between two Jeers
and their religious rights of office, which is not the case on hand.
40. It would be now appropriate to consider the decisions relied on by
both sides.
(i) Vol.XLII ILR 360, Madras Series (T.R.Ramachandra Aiyar Vs.
Parameswaran Unni):
“Suppose, there had been a deed of dedication with respect to the temple
in suit, and that deed stated in so many words that Mr.T.R.Ramachandra Aiyar and
all other worshippers of Sri Rama would be entitled to worship there, it could
hardly be contended then that Mr.T.R.Ramachandra Aiyar would not be a
beneficiary of the trust and as such entitled to maintain the suit. It cannot in
my opinion make any difference in this respect that there is no such deed of
dedication available in this case, if, as is admitted, the temple in question
was in fact intended for the use of worshippers of Sri Rama and
Mr.T.R.Ramachandra Aiyar is a devotee of Sri Rama and as such entitled to
worship in this temple.”
Learned Senior Counsel for the defendants submitted that since the persons who
have not frequently visited a Temple, are not the worshippers, they are not
entitled to maintain the suit, as laid down in the said decision reported in
Vol.XLII ILR 360, Madras Series (cited supra). But this citation is not
applicable to the facts of the present case, because, that decision was rendered
in 1918 and the H.R. & C.E. came into force from 1959. Furthermore, the
worshipper who visited the Temple and worshipped even once a year (annually), is
entitled to maintain the suit being a worshipper, as stated above, in the said
book of “V.K.Varadhachari’s Law of Hindu Religious and Charitable Endowments”.
(ii) AIR 1967 SC 1415 = 1967 (2) SCR 739 (Mahant Harnam Singh Vs. Gurdian
Singh):
“6. .. The only allegation was that a Langar used to be run in this
institution where free kitchen was provided to visitors. It was nowhere stated
that any such free kitchen was being run for the general residents of Village
Jhandawala who could, as of right, claim to be fed in Langar. Mere residence in
a village where free kitchen is being run for providing food to visitors does
not create any interest in the residents of the village of such a nature as to
claim that they can institute a suit for the removal of the Mahant. The nature
of the interest that a person must have in order to entitle him to institute a
suit under Section 92 CPC, was first examined in detail by the Madras High Court
in T.R.Ramachandra Aiyar v. Parmeswaran Unni, ILR 42 Mad 360 : (AIR 1919 MAD
384). After the dismissal of the suit under Section 92 CPC, by the District
Judge, the case came up in appeal before Wallis,C.J., and Kumaraswami Sastri,
J., who delivered dissenting judgments. The appeal was dismissed and then came
up before a Full Bench of three Judges under the Letters Patent. Three different
judgments were delivered by the members of the Full Bench, Abdur Rahim, Oldfield
and Coutts Trotter, JJ. Wallis, C.J., when dealing with the appeal at the
earlier stage, expressed his opinion that to entitle him to sue under Section 92
CPC, it is not enough that the plaintiff is a Hindu by religion, but he must
have a clear interest in the particular trust over and above that which millions
of his countrymen may be said to have by virtue of their religion; and this
opinion was expressed even though the word “direct” in Section 92 CPC, had been
omitted. It is not necessary to refer to other opinions expressed by the learned
Judges in that case in view of the decision of their Lordships of the Privy
Council in Vaidyanatha Ayyar v. Swaminatha Ayyar, 51 Ind.App. 282: (AIR 1924 PC
221)(2), where they approved the opinion expressed by Sir John Wallis, C.J., in
the case cited above, and held: “They agree with Sir John Wallis that the bare
possibility, however remote, that a Hindu might desire to resort to a particular
temple gives him an interest in the trust appears to defeat the object with
which the Legislature inserted these words in the section. That object was to
prevent people interfering by virtue of this section in the administration of
charitable trusts merely in the interests of others and without any real
interests of their own.” Agreeing with the view expressed by the Privy Council,
we hold that in the present case the plaintiff-respondents, who were merely
Lambardars and residents of Village Jhandawala, had, in those capacities, no
such interest as could entitle them to institute this suit.”
(iii) Vol.88 L.W. 577 (Madras High Court): (C.Kalahasti Vs.
R.Sukhantharaj):
“3. … We are not quite sure whether the last requisite, namely, that the
person must be in a position to derive some benefit from the trust in respect of
which the suit is filed, in order to qualify himself that he is a person having
interest in the trust, is entirely correct. All that the majority of the Full
Bench meant to say was that the plaintiff must stand on a special relationship
with the trust as distinct from the rest of the community in respect of the suit
trust, so that he may have a particular direct relationship with the
institution. To hold that any member of the public, who may have a distinct or
indirect connection or relationship with the institution, is a person having
interest in the trust, would dilute the requirement of S.92. …”
41. Learned Senior Counsel appearing for the defendants 7 to 9 submitted
that the villagers of Thirukurungui have sent a representation Ex.B-39 dated
2.9.2003, which is much prior to the suit. They are the real worshippers at
Azhagiya Nambirayar Perumal Temple, Thirukurungui. Ex.B-40 is the document
relating to another representation of the villagers, dated 12.9.2003, stating
that since the Shrine of the Presiding Deity is closed in the evening, the
Villagers were unable to celebrate the overnight festival of Sivarathiri and
Pradhosham and the other festivals of Lord Siva like Thirukalyanam and
Thiruvidaiyatri, as the Idol was in the Shrine of the Presiding Deity. Likewise,
they have also sent another representation dated 25.10.2004 with the same
request. So, the plaintiffs, with the mala-fide intention, to create a division
among the peace-loving villagers, have filed the suit under Order 1 Rule 8 CPC,
in a representative capacity and so, the plaintiffs have no locus-standi to file
the suit.
42. Admittedly, the suit was filed under Order 1 Rule 8 CPC, which reads
as follows:
Order 1 CPC: Parties to suits:
Rule 8: One person may sue or defend on behalf of all in same interest:
(1) Where there are numerous persons having the same interest in one
suit,–
(a) one or more of such persons may, with the permission of the Court, sue
or be sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested; (b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is
given under sub-rule (1), at the plaintiff’s expense, give notice of the
institution of the suit to all persons so interested, either by personal
service, or, where, by reason of the number of persons or any other cause, such
service is not reasonably practicable, by public advertisement, as the Court in
each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted
or defended, under sub-rule (1), may apply to the Court to be made a party to
such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-
rule (1), and no such suit shall be withdrawn under sub-rule (3), of Rule 1 of
Order XXIII, and no agreement, compromise or satisfaction shall be recorded in
any such suit under Rule 3 of that Order, unless the Court has given, at the
plaintiff’s expense, notice to all persons so interested in the manner specified
in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed
with due diligence in the suit or defence, the Court may substitute in his place
any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all
persons on whose behalf, or for whose benefit, the suit is instituted, or
defended, as the case may be.
Explanation.–For the purpose of determining whether the persons who sue
or are sued, or defend, have the same interest in one suit, it is not necessary
to establish that such persons have the same cause of action as the persons on
whose behalf or for whose benefit, they sue or are sued, or defend the suit, as
the case may be.”
43. The defendants 7 to 9 have earlier filed an application to implead
themselves as parties to the suit and were also impleaded as parties to the
suit, as ordered by this Court in C.R.P.(PD).No.970 of 2005, dated 24.11.2005.
After impleading applications were allowed after following procedures and the
defendants 7 to 9 were impleaded as parties to the suit, D7 to D9 pleaded that
none of the villagers made an objection for removal of the Lord Shiva Deity. In
such circumstances, I am of the view that the plaintiffs who are worshippers of
the Temple, are entitled to file the suit on behalf of Saivaites of
Thirukurungudi.
44. Now, it is proper for this Court to consider the decision relied on by
the learned counsel for the plaintiffs reported in 1995 Supp (4) SCC 286 (cited
supra), to show that right to worship is a civil right, which can be the subject
matter of a civil suit. The plaintiffs in the present case are the worshippers
of the Temple and the persons interested and so, they are having right to file
the suit.
45. Further, learned counsel for the defendants submitted that the suit is
hit by the provisions of Section 92 CPC, but this argument does not merit
acceptance.
46. Section 92 of CPC reads as follows:
” Section 92 CPC: Public charities–(1) In the case of any alleged breach of any
express or constructive trust created for public purposes of a charitable or
religious nature, or where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more
persons having an interest in the trust and having obtained the leave of the
Court may institute a suit, whether contentious or not, in the principal Civil
Court, of original jurisdiction or in any other Court empowered in that behalf
by the State Government within the local limits of whose jurisdiction the whole
or any part of the subject-matter of the trust is situate to obtain a decree–
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased
to be a trustee, to deliver possession of any trust property in his possession
to the person entitled to the possession of such property;
(d) directing accounts and inquires;
(e) declaring what proportion of the trust property or of the interest
therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let,
sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may
require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863),
or by any corresponding law in force in the territories which, immediately
before the 1st November, 1956, were comprised in Part B States, no suits
claiming any of the reliefs specified in sub-section (1) shall be instituted in
respect of any such trust as is therein referred to except in conformity with
the provisions of that sub-section.
(3) The Court may alter the original purposes of an express or
constructive trust created for public purposes of a charitable or religious
nature and allow the property or income of such trust or any portion thereof to
be applied cy pres in one or more of the following circumstances, namely :–
(a) where the original purposes of the trust, in whole or in part,–
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to
the directions given in the instrument creating the trust or, where there is no
such instrument, according to the spirit of the trust;
(b) where the original purposes of the trust provide a use for a part only
of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property
applicable for similar purposes can be more effectively used in conjunction
with, and to that end can suitably be made applicable to any other purpose,
regard being had to the spirit of the trust and its applicability to common
purposes; or
(d) where the original purposes, in whole or in part, were laid down by
reference to an area which then was, but has since ceased to be, a unit for such
purposes; or
(e) where the original purposes, in whole or in part, have, since they
were laid down,–
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or (iii)
ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of
using the property available by virtue of the trust, regard being had to the
spirit of the trust.”
47. Section 92 CPC is in respect of “public charities”, but the suit has
been filed by the plaintiffs as the worshippers of the Temple, the first
plaintiff is the President of Thirukurungudi Saiva Velalar Organisation and the
second plaintiff is a worshipper of Lord Siva. In such circumstances, the
argument advanced by learned counsel for the plaintiffs that without permission
under Section 92 CPC, the suit is not maintainable, does not merit acceptance.
So, the decisions reported in AIR 1967 SC 1415 (cited supra) and Vol.88 L.W. 577
(cited supra) are not applicable to the facts of the present case.
48. Admittedly, the suit is filed under Order 1 Rule 8 CPC and the
permission was accorded by Court and the suit has been contested by the
plaintiffs and during the pendency of the proceedings, the first plaintiff
Chockalingam died and the second plaintiff is proceeding with the suit. In such
circumstances, I am of the view that the worshipper has a right to worship the
Deity “Pakkam Nindrar” and the right to worship at a particular place is equal
to the right to worship and so, I am of the view that the plaintiffs have locus-
standi to file the suit.
49. Learned counsel for the plaintiffs also submitted that the plaintiffs
have filed the suit in a representative capacity and also obtained an ex-parte
order of injunction before the trial Court, against which, Civil Revision
Petition has also been preferred before this Court. At this juncture, the
Government passed G.O.(Ms).No.55, dated 8.4.2005, ratifying the action of
shifting of Lord Shiva and so, the Division Bench of this Court as found in
Ex.C-5 judgment, dated 3.10.2005 in Writ Appeal Nos.1204 to 1207 of 2005, 1275
of 2005, W.P.Nos.23178, 23193, 704, 1002 and 2246 of 2004, 18450 of 2005 and
C.R.P.PD.Nos.27 and 28 of 2004, passed an order observing that the parties
interested can agitate their rights before the trial Court and in paragraph 6,
the Division Bench further observed as follows:
“7. … …. Since the suit is filed in a representative capacity under
Order 1 Rule 8 of the Code of Civil Procedure, it is needless to state that any
person in whose behalf or for whose benefit the suit is instituted or defended
may apply to the court to be made as a party to the court (See Order 1 Rule 8(3)
of the CPC). Under these circumstances, if any person comes before the court
with an application under Order 1 Rule 8(3) of the Code to get himself
impleaded, the learned trial Judge is directed to take up that application also
and dispose of the same in accordance with law within 15 days from the date of
receipt of such application.”
50. So, learned counsel for the plaintiffs submitted that the Division
Bench of this Court in the said Ex.C-5 judgment, came to the conclusion that the
plaintiffs have filed the suit in a representative capacity and hence, it is
contended by the learned counsel for the plaintiffs that the plaintiffs are
competent to institute the suit in a representative capacity. But now, the
defendants are not entitled to take up the defence that the plaintiffs are not
the worshippers of the Temple and the plaintiffs have no locus-standi to file
the suit.
51. The defendants further contend that there is no pleading in the
plaint that they are the worshippers. To substantiate this point, learned
counsel for the plaintiffs relied upon a decision of this Court reported in 1999
SAR [Supreme Appeals Reporters] (Civil) 472 (Sardul Singh Vs. Pritam Singh and
others) and 1998 SAR (Civil) 544 (Ganesh Shet Vs. Dr.C.S.G.K.Setty and others),
in which decisions, it is held by the Apex Court as follows:
1999 SAR (Civil) 472: (Sardul Singh Vs. Pritam Singh and others):
“12. … It is well-settled that notwithstanding the absence of pleadings
before a court or authority, still if an issue is framed and the parties are
conscious of it and went to trial on that issue and adduced evidence and had an
opportunity to produce evidence or cross examine witnesses in relation to the
said issue, no objection as to want of a specific pleading can be permitted to
be raised later. …”
1998 SAR (Civil) 544(Ganesh Shet Vs.Dr.C.S.G.K.Setty and others):
“Held: While normally it is permissible to grant relief on the basis of
what emerges from the evidence – even if not pleaded, provided there is no
prejudice to the opposite party, such a principle is not applied in suits
relating to specific performance. Other relief to be granted must be consistent
with both pleading and proof in suits for specific performance. In a suit for
specific performance, the plaintiff cannot be given relief under the general
prayer “such other relief as this Hon’ble Court may deem fit to grant in the
circumstances of the case”, in the light of Order 7, Rule 7 CPC – There is a
difference between suits for specific performance and other suits.”
52. It is further contended by the learned counsel for the plaintiffs that
as per Ex.C-5 jugment of the Division Bench in the writ petitions and other
connected cases, the suit filed by the plaintiffs is a comprehensive suit on the
issue and the “lis” involved in the suit has to be decided on merits and thus,
the locus-standi of the plaintiffs had been impliedly upheld by the Division
Bench as observed in Ex.C-5 judgment. First defendant, who accepted the verdict
of the Division Bench, while disposing of the batch of cases, is not at all
entitled to question the locus-standi of the plaintiffs to maintain the suit.
53. Learned counsel for the defendants also relied upon a decision of the
Supreme Court reported in AIR 1964 SC 107 (Ahmad Adam Vs. Makhri), wherein the
Apex Court held as follows:
“17. A similar result follows if a suit is either brought or defended
under O.1 R.8. In that case, persons either suing or defending an action are
doing so in a representative character, and so, the decree passed in such a suit
binds all those whose interests were represented either by the plaintiffs or by
the defendants. Thus, it is clear that in determining the question about the
effect of a decree passed in a representative suit, it is essential to enquire
which interests were represented by the plaintiffs or the defendants. If the
decree was passed in a suit under S.92, it will become necessary to examine the
plaint in order to decide in what character the plaintiffs had sued and what
interests they had claimed. If a suit is brought under O.1 R.8, the same process
will have to be adopted and if a suit is defended under O.1 R.8, the plea taken
by the defendants will have to be examined with a view to decide which interests
the defendants purported to defend in common with others. The decision of this
question would be material in determining the correctness of the argument urged
by Mr.Setalvad before us.”
54. Learned counsel for the defendants further relied on a decision of
this Court reported in AIR 1984 Madras 328 (P.Sivagurunatha Pillai Vs. P.Mani
Pillai), in which, in paragraph 10, it was held by a Division Bench of this
Court that the interest contemplated under Section 92 of the CPC, should be
real, substantive and an existing interest though it need not be a direct
interest; mere residence of the party to the suit in a village would not enable
the party to claim that he is a person interested in properties and as such,
entitled to maintain the action under Section 92 CPC.
55. There is no quarrel over the proposition of law laid down in the above
decision reported in AIR 1984 Madras 328 (cited supra). As already observed, the
plaintiffs are the worshippers of the Temple and even during the visit by the
Expert Committee of the H.R. & C.E., appointed by the Government, the plaintiffs
and the villagers objected for removal of the Lord Shiva and hence, they are
having interest in the Temple.
56. Learned counsel for the defendants also relied upon a decision of this
Court reported in Vol.52 MLJ 288 = AIR 1927 Madras 465 (Venkatachala Mudaliar
Vs. Sambasiva Mudaliar), in which it was held as follows:
“Where an old Hindu temple with a consecrated image in it has become
insanitary due to the collecting of water all round it and its being situated
very near the roadway, and in the interests of the general body of worshippers a
very large majority of them is for the removal of the old temple to a new site,
the Court should not interfere with their discretion as what they do is,
according to their notions, beneficial to the whole community.”
Relying on the said decision reported in Vol.52 MLJ 288 = AIR 1927 Madras 465
(cited supra), learned counsel for the defendants submitted that the opinion of
the entire village is important than the section of the people.
57. In this case, after the disposal of the cases by the Division Bench as
found in Ex.C-5, D7 to D9 have been impleaded and they have put forth their case
that they are supporting the case of the first defendant-Jeer. As already
stated, the Lord Shiva was there even during the period of Thirumangai Azhwar,
i.e. in 7th Century. In such circumstances, there is no need to alter the Deity
from the original place. As per the documents before this Court, even in 1911
and 1981, the Temple Consecration (Kumbhabhishekam) was performed and at that
point of time, no one raised their little finger for removal of the Idol of Lord
Shiva/Lord Mahendragirinathar from the original place. Only in 1996 after “Deva
Prasannam” was conducted, the villagers raised their representation/objection in
2003 and before that, no one gave any representation/objection either to the
H.R. & C.E. Department or to the first defendant-Jeer of the Mutt and no
document has been filed before this Court in this regard.
58. Learned counsel for the defendants relied on a decision of the Full
Bench of this Court reported in AIR 1930 Madras 817 (Abdul Sac. Vs. Sundara
Mudaliar), wherein, the Full Bench observed as follows:
“Whether a defendant against whom a suit is dismissed continues or ceases
to be party within the meaning of S.47 CPC does not entirely depend upon
whether his name has been struck off from or retained on the record, and
consequently in order to determine whether a particular defendant against whom
the suit is dismissed is or is not a party to the suit within the meaning of
S.47, it is the duty of the Court not only to refer to the decree but also to
judgment and pleadings.”
“Where a suit is dismissed against a person on the ground that he was
improperly impleaded as party having no concern with the suit, such a person
does not remain a party to the suit for the purposes of S.47, notwithstanding
whether his name has or has not been removed from record. In such cases, it is
the duty of the Court to strike out the name of the party improperly impleaded;
it is quite wrong procedure to dismiss the suit as against him. It is quite
otherwise in the case where the plaintiff abandons his claim against the
defendant and the suit is dismissed as against him. In the latter case, the
defendant is not a person to whom Order 1 Rule 10(2) CPC applies.”
59. Relying on the said decision of the Full Bench, it is contended that
S.A.(MD).Nos.176 and 646 of 2010 filed by D5 and D6, is not maintainable, since
the trial Court came to the conclusion that they are not necessary parties to
the suit, even though they have filed impleading petition to implead themselves
as parties to the suit, ultimately, as stated above, after trial, the trial
Court came to the conclusion that D5 and D6 are not necessary parties to the
suit, against which, D5 and D6 did not prefer any First Appeal. The trial Court
decreed the suit as prayed for by the plaintiffs, against which, First
defendant-Jeer and D2, D3 and D7 to D9 alone preferred First Appeals, whereas D5
and D6 did not prefer any First Appeal. The first appellate Court allowed those
First Appeals and dismissed the prayer sought for in the suit. Now, D5 and D6
have filed the Second Appeals in S.A.(MD).Nos.176 and 646 of 2010 and it is the
contention of the learned counsel for the first defendant-Jeer that those Second
Appeals by D5 and D6 are not maintainable.
60. In reply, learned counsel for D5 and D6 submitted that the suit had
been filed by the plaintiffs, and D5 and D6 have impleaded themselves as parties
in support of the prayer sought for by the plaintiffs and they are also
supporting some portion of the plaintiff’s pleadings. But however, the trial
Court decreed the suit as prayed for by the plaintiffs, even though it was held
that D5 and D6 are not necessary parties and since the object and aim of D5 and
D6 had been fulfilled and since no judgment and decree had been rendered against
D5 and D6, no First Appeal was filed as against the very findings rendered by
the trial Court against D5 and D6. Therefore, learned counsel for D5 and D6
submitted that there is no ground for fling the First Appeal by the D5 and D6
before the first appellate Court and since the First Appeals by the other
defendants, namely D1 to D3 and D7 to D9, have been allowed, the relief sought
for by D5 and D6 in the written statement, has ultimately been negatived by the
first appellate Court and only thereafter, the right to appeal by D5 and D6,
arises, and hence, D5 and D6 have filed the respective Second Appeals, and
hence, they are entitled to maintain those Second Appeals. He further submitted
that since judgment and decree had been rendered against D5 and D6 before the
trial Court, no First Appeal was preferred by them as there was no need to file
the First Appeals.
61. The said decision of the Full Bench reported in AIR 1930 Madras 817
(cited supra), is not applicable to the facts of the present case, because, in
that decision, D2 claims an independent title and he has endorsed on the plaint
that he does not derive his title from the mortgagor but quite independently of
him and therefore, the trial Court held that he is not a necessary party to the
suit and the suit must be therefore dismissed with costs against D2 to D6
therein, and it also observed that the plaintiffs will get a decree against the
other defendants in the suit and the suit was accordingly dismissed as against
D2 to D6. But, in the instant case, D5 and D6 impleaded themselves as parties to
the suit, and their prayer was to direct the defendants to restore the Idol of
Lord Shiva in the original place within stipulated time as may be granted by
Court. The trial Court decreed the suit as prayed for by the plaintiffs, even
though it came to the conclusion that D5 and D6 are not necessary parties to the
proceedings. Since the object of D5 and D6 had been ultimately fulfilled, it is
stated that they have not preferred any First Appeal. Since the First Appeals
have been filed only by D1 to D3 and D7 to D9, which have also been allowed,
resulting in the dismissal of the suit, now D5 and D6 have preferred these
Second Appeals.
62. Learned counsel for First defendant-Jeer also submitted that the suit
is hit by the principles of ‘res-judicata’ and in support of the same, he relied
upon the following decisions of the Supreme Court:
(i) AIR 1964 SC 993 (Arjun Singh Vs. Mohindra Kumar) :
Held: Scope of the principle of res-judicata is not confined to what is
contained in Section 11 CPC, but is of more general application. Again, res-
judicata could be as much applicable to different stages of the same suit as to
findings on issues in different suits. If the court which rendered the first
decision was competent to entertain the suit or other proceeding, and had
therefore competency to decide the issue or matter, the circumstance that it is
a tribunal of exclusive jurisdiction or one from whose decision no appeal lay,
would not by themselves negative the finding on the issue by it being res-
judicata in later proceedings. Where the principle of res-judicata is invoked in
the case of the different stages of proceedings in the same suit, the nature of
the proceedings, the scope of the enquiry which the adjectival law provides for
the decision being reached, as well as the specific provisions made on matters
touching such decision are some of the material and relevant factors to be
considered before the principle is held applicable.”
Relying on the said decision reported in AIR 1964 SC 993 (cited supra), learned
counsel for First defendant-Jeer submitted that the scope of the principle of
res-judicata, is not confined to what is contained in Section 11 CPC, but is of
more general application; again res-judicata could be as much applicable to
different stages of the same suit as to findings on issues in different suits.
He further submitted that the trial Court and the first appellate Court came to
the conclusion that D5 and D6 are not necessary parties to the suit, and hence,
D5 and D6 are not entitled to file any Second Appeal. Though there is no quarrel
over the proposition of law laid down in the said decision, but the same is not
applicable to the facts of the present case.
(ii) AIR 1977 SC 34 (J.Narasimha Vs. A.S.Krishna & Co.)
“3. This appeal is only by the first defendant (appellant). The second
defendant, whose interests are affected by the decree, has not preferred any
appeal against the decree. That being the position, the appellant cannot be
heard to contest the decree in view of the admitted position that he had
executed the sale agreement and had received part consideration. At any rate, he
cannot question the agreement. The finding that the entire suit property is the
self-acquired property of the appellant cannot be contested by him in this
appeal. The real person who should be aggrieved by this finding has not even
chosen to appeal against the decree. There is, therefore, no merit in the
objection taken by the learned counsel with regard to the character of the suit
property.”
As per this decision, the appeal therein was only by D1 and D2, whose interests
are affected by the decree, has not preferred any appeal against the decree, and
that being the position, it was held that the appellant-First defendant therein
cannot be heard to contest the decree in view of the admitted position that he
had executed the sale agreement and had received part consideration. In the case
on hand, no decree has been passed against D5 and D6 and hence, the said
decision reported in AIR 1977 SC 34 (cited supra), is not applicable to the
facts of the present case.
(iii) AIR 1996 SC 869 (Mahesh Chand Sharma Vs. Raj Kumari Sharma):
“32. The plea of limitation raised by the defendant-appellant cannot be
upheld for more than one reason. The reasons are the following:
(a) Among the issues framed in the suit, Issue No.5 pertains to the plea
of limitation put forward by Defendant Nos..2 to 5. The issue runs thus:-
“Whether the suit is within time?” On this issue, the learned single Judges
(Trial Judge) recorded a finding in favour of the plaintiff. He found the suit
within limitation. The decision on the above issue was not contested by the
parties before the Division Bench. The Division Bench has expressly recorded
that ‘the decisions on the above issues (Issues 1,2,3,4,5 and 6) are not
contested by the parties in this appeal and, therefore, the findings of the
learned single Judge are hereby affirmed”. Once this is so, it is not open to
the third defendant-appellant in these appeals to seek to re-agitate the said
plea. We cannot allow him to do so. A party who abandons a particular plea at a
particular stage cannot be allowed to re-agitate in appeal.”
This citation is not applicable to the facts of the present case.
63. It is further submitted by learned counsel for First defendant-Jeer
that the findings rendered by the Court, operate as ‘res-judicata’ between the
co-defendants. In this regard, the following decisions are relied on by the
counsel for the parties:
(i) AIR 1970 SC 809 (S.P.Misra Vs. Babuaji):
Held: that the question whether the suit lands appertained to the village
of the deity became res sub judice on filing of first appeal and since this
question was not finally decided between deity and other contesting defendants
in appeal in the absence of any decision by High Court on merits on this
question there was no final decision against deity. Thus there was no question
of res judicata between co-defendants. ”
(ii) AIR 1974 SC 749 (Iftikhar Ahmed Vs. Syed Meharban Ali):
“The rule of res judicata while founded on ancient precedent is dictated
by a wisdom and the application of the rule should be influenced by no technical
considerations of form, but by matter of substance within the limits allowed by
law. The raison d’etre of the rule is to confer finality on decisions arrived at
by competent Courts between interested parties after genuine contest.”
“It is now settled that for a judgment to operate as res judicata between
or among the co-defendants, it is necessary to establish that (1) there was a
conflict of interest between the co-defendants (2) that it was necessary to
decide the conflict in order to give relief which the plaintiff claimed; and (3)
that the Court actually decided the question. If thus a previous decision can
operate as res judicata between the co-defendants under certain conditions,
there is no reason why a previous decision should not operate as res judicata
between the co-plaintiffs is the same conditions are mutatis mutandis
satisfied.”
(iii) 1995 (3) SCC 693 (Mahboob Sahab Vs. Syed Ismail):
“8. …. Under Section 11 CPC when the matter has been directly or
substantially in issue in a former suit between the same parties or between
parties under whom they or any of them claimed, litigating under the same title,
the decree in the former suit would be res-judicata between the plaintiff and
the defendant or as between the co-plaintiffs or co-defendants. But for
application of this doctrine between co-defendants four conditions must be
satisfied, namely that (1) there must be a conflict of interest between the
defendants concerned; (2) it must be necessary to decide the conflict in order
to give the reliefs which the plaintiff claims; (3) the question between the
defendants must have been finally decided; and (4) the co-defendants were
necessary or proper parties in the former suit. …. …. if a plaintiff
cannot get at his right without trying and deciding a case between co-
defendants, the Court will try and decide the case, and the co-defendants will
be bound by the decree. But if the relief given to the plaintiff does not
require or involve a decision of any case between co-defendants, the co-
defendants will not be bound as between each other.”
64. There is no quarrel over the propositions of law laid down in the
above two decisions reported in AIR 1970 SC 809 and AIR 1974 SC 749 (both cited
supra). But these citations are not applicable to the facts of the present case,
because, the trial Court and the first appellate Court came to the conclusion
that D5 to D9 are not necessary parties for adjudication of the suit.
Admittedly, no First Appeal has been preferred by D5 and D6, whereas D1 to D3
and D7 to D9 have preferred First Appeals, since they are supporting the case of
First defendant-Jeer, and since the suit was decreed. The First Appeal preferred
by D7 to D9 was allowed along with the First Appeals preferred by D1 to D3.
65. Learned counsel for First defendant-Jeer submitted that without filing
the First Appeal, D5 and D6 are not entitled to file Second Appeals. To
substantiate this submission, he relied on the following decisions of the
Supreme Court:
(i) AIR 1982 SC 98 (Choudhary Sahu Vs. State of Bihar):
“Where the Collector on the basis of the material placed before him
allowed certain units to the various landholders who feeling aggrieved went up
in appeal before the Commissioner of the Division but the State of Bihar
submitted to the order and did not go up in appeal nor did it file cross-
objection,
held, committed a mainfest error in reversing the finding regarding
allotment of units to the various appellants (landholders) in the absence of any
appeal by the State of Bihar when the same had become final and rights of the
State of Bihar had come to an end to that extent by not filing any appeal or
cross-objection within the period of limitation. On the strength of the first
part of sub-clause (1) of Rule 22 of Order 41 CPC, the State of Bihar could only
support the decree not only on the grounds decided in its favour but also on the
grounds decided against it. The Commissioner however, could not set aside the
findings in favour of the appellant on the strength of O.41 R.22 (1).”
“Nor was the Commissioner empowered to do it by invoking O.41 R.33, CPC as
the Rule did not confer an unrestricted right to re-open decrees which had
become final merely because the appellate Court did not agree with the opinion
of the Court appealed from.”
(ii) AIR 2003 SC 1682 (Shankar Popat Gaidhani Vs. Hiraman Umaji More):
“12. The plaintiff, as noticed hereinbefore, did not question the judgment
and decree passed by the Trial Court. Evidently, the Court did not grant a
decree for recovery of possession so far as the suit land is concerned. In that
view of the matter, the High Court, in our opinion, committed a serious error in
granting a relief in favour of the plaintiff in an appeal filed by Defendant
No.1 purporting to modify Relief (a), as aforementioned, particularly in view of
the fact that amongst others, the Appellant claimed himself to be in physical
possession of the lands in question. The Appellant, indisputably was not a party
to the said agreement for sale.
12. The High Court also could not have exercised its jurisdiction in
issuing the said direction even under Order 41 Rule 33 of the Code of Civil
Procedure inasmuch the said provision could not be invoked by one respondent as
against another as therefor it was obligatory on the part of the plaintiff to
file a cross objection in terms of Order 41, Rule 22 of the Code of Civil
Procedure and give notice in relation thereto to the parties who claimed
independent possession over the suit land.”
(iii) AIR 1962 SC 630 (Union of India Vs. P.K.More):
“When an improper conduct is alleged, it must be set out with all
particulars. A plaintiff cannot complain if general allegations made by him in
the plaint are answered by equally general allegations in the written statement.
Where the plaint alleged that the order of removal of the plaintiff from
service was in violation of Articles 14 and 16 of the Constitution inasmuch as
the plaintiff was arbitrarily picked up and sacked and the defendant answered
the allegation in its written statement by stating that the defendant denied
that the order of removal was in violation of Articles 14 and 16 of the
Constitution:
Held, that, in the absence of the particulars in the plaint all that the
defendant could do would be simply to deny that there had been discrimination.
When the defendant in its written statement said that there had been no
violation of Articles 14 and 16 of the Constitution, it meant that there had
been no arbitrary or hostile discrimination as alleged in the plaint; otherwise
of course, the written statement would be meaningless. In such a state of the
pleadings, it could not be said that the defendant had admitted that there had
been discrimination.”
(iv) AIR 1950 Bombay 161 (Rammohanrai Vs. Somabhai) (Division Bench of the
Bombay High Court):
“9. … Under Order 41 Rule 22 CPC, a party can file any cross-objection
to a decree which could have been taken by way of appeal. Where a party cannot
appeal from a decree, because nothing is decided against him, he cannot file any
cross-objections to it. The cross-objections must also be in respect of
something decided by the particular decree from which the appeal is preferred.”
66. Learned Senior Counsel appearing for D7 to D9 submitted that D5 and D6
ought to have filed Cross Appeals against the findings rendered against them by
the trial Court. At this juncture, it is appropriate to consider the decision
relied on by learned counsel for D5 and D6, i.e. the judgment of the Supreme
Court reported in AIR 2003 SC 1989 (Banarsi Vs. Ram Phal), wherein, the Apex
Court observed as follows:
“8. … No appeal lies against a mere finding. It is significant to note
that both Sections 96 and 100 of the CPC provide for an appeal against decree
and not against judgment.”
“9. ….. Thus it is clear that just as an appeal is preferred by a
person aggrieved by the decree so also a cross-objection is preferred by one who
can be said to be aggrieved by the decree. A party who has fully succeeded in
the suit can and needs to neither prefer an appeal nor take any cross-objections
though certain finding may be against him. Appeal and cross-objection – both are
filed against decree and not against judgment and certainly not against any
finding recorded in a judgment. This was well-settled position of law under the
unamended CPC.”
“12. …. No compensation or any other relief including the relief of
refund shall be granted by the Court unless it has been specifically claimed in
the plaint by the plaintiff. …”
67. From the said decisions relating to filing of Appeals/Cross-objections
under the CPC, it is clear that just as an appeal is preferred by a person
aggrieved by the decree, so also a cross-objection is preferred by one who can
be said to be aggrieved by the decree. A party who has fully succeeded in the
suit can and needs to neither prefer an appeal nor take any cross-objections
though certain finding may be against him. Hence, the contention made by learned
counsel for D5 and D6 that only the finding is against them, and therefore,
there is no need to file any First Appeal, merits acceptance.
68. As already discussed, as the plaintiffs are the worshippers and the
right to worship is a civil right, they are entitled to maintain the suit and
since the right of the worshippers had been disturbed and objected, they have
locus-standi to file the suit. Substantial question of law (ii) is answered in
the above terms.
69. Substantial questions of law (iv), (vi), (vii) and (ix) :
(iv) Whether the lower appellate Court is justified in holding that the
shifting of the Idol Lord Shiva was done on the basis of the Deva Prasannam,
without any reference to the Agama Saastrams ?
(vi) Whether the lower appellate Court is right in holding that the
shifting of the Idol of Lord Shiva is correct and it is in accordance with Agama
Saastras, without making it clear the relevant Agama Saastras to that effect ?
(vii) Whether the lower appellate Court is right in allowing the First
Appeal, when admittedly the Idol of Lord Shiva was shifted and the defendants
failed to establish that the shifting of Idol of Lord Shiva was in accordance
with Agama Saastras or other religious text ?
(ix) Whether the lower appellate Court is right in placing the burden on
the appellants to prove that the shifting of Lord Shiva is against the Agama
Saastras ?
The above four substantial questions of law deal with the correctness of
the removing and shifting of the Idol of Lord Shiva from the original place to
new place.
70. The original place of Idol of Lord Shiva–Mahendragirinathar before
removal, is admitted. Learned counsel for the plaintiffs submitted that the Lord
Shiva is mentioned as “Pakkam Nindrar” and the Temple has been constructed from
time immemorial, which is evidenced by the recitals of Thirumangai Azhwar as:
@mf;Fk;g[y[padjS KilahutbuhUth;
gf;;fk;epw;fepd;w gz;gU:h;BghYk;
jf;fkuj;jpd; jhH;rpidBawp jha;thapy;
bfhf;fpd;gps;is bts;spwt[z;Zk; FWA;FoBa@
So, the Idol of Lord Shiva is not a later construction as alleged by the
defendants. At this juncture, learned counsel for the plaintiffs culled out a
portion of the oral and documentary evidence and submitted that as per the
evidence of D.W.4 Narayanan, who is the “Sri Kariyam” (Manager) of the Jeer
Mutt, himself admitted that the idol of Lord Shiva is there for more than 200
years.
71. In this regard, it is appropriate to consider the findings of the
first appellate Court, which is the last fact finding Court, as this Court has
powers to re-appreciate the oral and documentary evidence under Section 103 CPC.
Section 103 CPC reads as follows:
“Section 103 CPC: Power of High Court to determine issue of fact.–In any second
appeal, the High Court may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the appeal,–
(a) which has not been determined by the lower Appellate Court or both by
the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts by reason of
a decision on such question of law as is referred to in Section 100.”
72. Learned counsel for the plaintiffs submitted that the first appellate
Court has not heard the arguments of the plaintiffs, who are the respondents in
the first appellate Court and it has not considered the petitions seeking for
substitution of parties, in I.A.No.130 of 2009 in A.S.No.29 of 2007, I.A.No.133
of 2009 in A.S.No.37 of 2007, I.A.No.136 of 2009 in A.S.No.63 of 2007 and
I.A.No.142 of 2009 in A.S.No.37 of 2007 in proper perspective and the first
appellate Court has simultaneously disposed of the said I.As. along with the
respective First Appeals. So, the judgment of the first appellate Court is
perverse and this Court has ample powers under Section 103 CPC to interfere with
the findings of the first appellate Court, as they are perverse.
73. Furthermore, during the pendency of Tr.O.Ps., without giving
opportunity to the plaintiffs/respondents in the first appellate Court to put
forth their case, the learned first appellate Judge hastily disposed of the
First Appeals, along with the above said I.As., simultaneously, without
considering the materials available on record. In such circumstances, I am of
the view that this Court has ample powers to re-appreciate the oral and
documentary evidence, as per the provisions of Section 103 CPC.
74. At this juncture, this Court has to consider the oral and documentary
evidence. Regarding the existence of the Temple, D.W.4 in his cross-examination
stated that the Shiva Temple has been constructed 200 years ago, but the
original Temple was constructed 1300 years ago. In his cross-examination, D.W.4
fairly conceded that the Lord Shiva-Mahendragirinathar came into existence 200
years ago, and he also mentioned about the Lord Pakkam Nindrar, i.e. the present
Lord Shiva in the original position. In his cross-examination he has fairly
conceded that in 1911, there was a “Kumbhabhishekam” (consecration ceremony of
the Temple) and at that time, it was also mentioned as “Lord Pakkam Nindrar”.
So, learned counsel for the plaintiffs submitted that the existence of Lord Siva
Temple in the place where it was originally situated as per the version of
D.W.4, is much prior, nearly 200 years ago. After that, several
“Kumbhabhishekams” have been performed and the Temple Trustees have not taken
steps to remove the Idol of Lord Shiva.
75. In this connection, it is appropriate to consider the documents filed
by the defendants. In Ex.B-3 which is the “Thirukurungudi Divya Sthala Malar”,
in page 47, it is stated that the Lord Shiva is in the Vaishnavaite Temple while
praising the Lord Vishnu. It is stated therein as follows:
“mf;Fk;g[y[padjS KilahutbuhUth;
gf;;fk;epw;fepd;w gz;gU:h;BghYk;
jf;fkuj;jpd; jhH;rpidBawp jha;thapy;
bfhf;fpd;gps;is bts;spwt[z;Zk; FWA;FoBa@
bfhf;fpd; Fl;oahdJ (jdf;F Vwj;) jFe;jjhd xU kuj;jpDila jhH;e;j fpisapy;
Vwp jha;f;bfhf;fpd; thapypUf;fpw *bts;spwh* vd;Dk; rhjp kPid cz;zg;bgw;w
jpUf;FW’;Fobad;Dk; jykhdJ–vYk;iga[k; g[ypapd; Bjhiya[k; cilatuhd rptgpuhdhfpw
xUth; mUBfapUf;f (nlA;bfhLj;J) vGe;jUspapUf;fpd;w rPyFzKilauhd bgUkhSila
jpt;aBjrkhk;@
Ex.B-3 came into existence in 1967 much prior to the litigation. Furthermore, it
was marked through D.W.1.
76. Learned Senior Counsel for D7 to D9 submitted that in the book titled
“Thiruvaimozhi”, it was mentioned that always, the Lord Vishnu has given His
right side of the body to the Lord Shiva. Likewise, as per the Divine Hymn of
the Saint Thirumangai Azhwar, “mf;Fk;g[y[padjS KilahutbuhUth; gf;;fk;epw;fepd;w
gz;gU:h;BghYk; jf;fkuj;jpd; jhH;rpidBawp jha;thapy; bfhf;fpd;gps;is
bts;spwt[z;Zk; FWA’;FoBa@, which means that the Lord Shiva is taking part and is
besides the Lord Vishnu in the village called Thirukurungudi. But the above
reliance on the book “Thiruvaimozhi” does not merit acceptance, because, as per
the version in the Divine Hymn of the Saint Thirumangai Azhwar, as quoted above,
the Lord Shiva was in existence in the village Thirukurungudi as “Lord Pakkam
Nindrar” to the Lord Vishnu.
77. Nextly, learned counsel for the plaintiffs submitted that in Ex.B-4
Gazetteer, the Lord Pakkam Nindrar has been mentioned even in 1879 Gazetteer and
subsequently, the said Ex.B-4 Gazetteer was re-published on 12.3.1916. This
shows that even prior to 1879, the Lord Shiva is in the place from where it was
removed.
78. Learned counsel for the defendants 7 to 9 submitted that Ex.B-4
Gazetteer is not admissible in evidence. To substantiate the same, learned
counsel for the defendants 7 to 9 relied on the decisions reported in AIR 1928
Privy Council 10 (Martand Rao Vs. Malhar Rao) and AIR 1995 SC 167 = 1995 Supp
(1) SCC 485 (Bala Shankar Maha Shankar Bhattjee Vs. Charity Commr. Gujarat). On
the other hand, learned counsel for the plaintiffs relied upon the decision of
the Supreme Court reported in AIR 1967 SC 256 (Srinivas R.Das Vs. Surjanarayan)
and submitted that Ex.B-4 is admissible in evidence.
79. It is worthwhile to note the Dictionary meanings of “Gazette” and
“Gazetteer”, as relied on by learned counsel for D7 to D9, and extracted
hereunder:
I. “The Chambers Dictionary: by Allied Chambers (India) Limited, New Delhi:
Gazette:
(i) An official newspaper containing lists of Government appointments,
legal notices, despatches, etc.;
(ii) a title used for some newspapers to publish or mention in a gazette;
(iiii to announce or confirm (a person’s appointment or promotion), esp.
in an official gazette;
Gazetteer:
(i) a geographical dictionary, a reference book containing alphabetical
entries for places of the world, with maps, etc;
(ii) a writer for a gazette, an official journalist , to describe in a
gazetteer;”
II. Mitra’s Legal & Commercial Dictionary: Sixth Edition, 2006: by Tapash Gan
Choudhury, Advocate, High Court, Calcutta: Published by Eastern Law House,
Kolkata and New Delhi :
“Gazette: It is a publication of an official character which contains Government
notifications, lists of public appointments and honours, legal notices, etc.,
which are presumed to be genuine.
The official publication of news of all kinds the Government desire to
make known to the public. (General Clauses Act, S.3(39)).
Gazetteer:
A dictionary which contains a historical account, or the general
description of any place, district or province; a dictionary of geographical
names.”
80. Now, it would be appropriate on the part of this Court to consider the
decisions relied on by the learned counsel for both sides to decide whether
Ex.B-4 Gazetteer is admissible in evidence. In AIR 1967 SC 256 (Srinivas R.Das
Vs. Surjanarayan), the Apex Court observed as follows:
“26. It is urged for the appellant that what is stated in the Gazetteer
cannot be treated as evidence. These statements in the Gazetteer are not relied
on as evidence of title but as providing historical material and the practice
followed by the Math and its head. The Gazetteer can be consulted on matters of
public history.” (emphasis supplied)
81. In AIR 1928 Privy Council 10 (Martand Rao Vs. Malhar Rao), the Privy
Council held as follows:
“Official reports regarding the nature of any estate are valuable and in
many cases the best evidence of facts stated therein, but opinions therein
expressed should not be treated as conclusive in respect of matters requiring
judicial determination, however eminent the authors of such reports may be.”
The above citation reported in AIR 1928 Privy Council 10, relates to official
reports regarding the nature of any estate which are valuables and the Privy
Council held that the opinions expressed therein should not be treated as
conclusive in respect of matters requiring judicial determination, however
eminent the authors of such reports may be. This citation deals with neither the
“gazetteer” nor the “gazette” and it only refers the official reports of the
eminent authors. In such circumstances, this citation is not applicable to the
facts of the present case.
82. In AIR 1995 SC 167 = 1995 Supp (1) SCC 485 (Bala Shankar Maha Shankar
Bhattje Vs. Charity Commr., Gujarat), the Supreme Court, while dealing with
Gazette of Bombay Presidency, which was also published in 1879, containing
historical material relating to the dispute whether the Temple in question
therein is public or private, the Supreme Court held that it is a piece of
evidence under Section 45 of the Evidence Act (1 of 1872) and the Supreme Court
further held that though the said Gazette was not conclusive, the Court may
consider such evidence in conjunction with the other evidence.
83. While going through the above three citations, it is seen that the
decision reported in AIR 1995 SC 167 = 1995 Supp (1) SCC 485 (cited supra), is
in respect of a “Gazette” and not in respect of a “Gazetteer” and in that
decision, the Supreme Court observed that the Gazette is admissible being
official record evidencing public affairs and the Court may presume the contents
as genuine and the statement contained therein can be taken into account to
discover the historical material contained therein and the facts stated therein
is evidence under Section 45 of the Indian Evidence Act and the Court may in
conjunction with the other evidence and circumstances take into consideration in
adjudging the dispute in question, though may not be treated as conclusive
evidence. So, the learned counsel for the plaintiffs submitted that even though
the Gazette is admissible in evidence, it is not a conclusive proof of evidence,
whereas, the Gazetteer is not issued by the Government and so, it is not
admissible in evidence. Per contra, as per the decision reported in AIR 1967 SC
256 (cited supra), Gazetteer cannot be treated as an evidence and the statements
in the Gazetteer could not be relied on as evidence of title, but as providing
historical material and the practice followed by the Math and its Head and that
the Gazetteer can be consulted on matters of public history. In the present
case, in Ex.B-4 Gazetteer, it is stated as follows:
“A curious feature of the temple, one which is generally quoted as
illustrating the breadth of view of its distinguished founder, is the existence
within the Vaishnavite temple of one dedicated to Siva. Paramasivan, it is said,
whilst wandering over the earth under the ban of a curse, came one day to
Tirukkurungudi. There the god Nambi, an incarnation of Vishnu, treated him with
kindness and promised his visitor that he should receive equal respect with
himself. So the new god was established and received the name “Pakka-nindrar”
“he who stands by the side.”
84. Therefore, even in 1879, it was mentioned in Ex.B-4 Gazetteer about
the history of Thirukurungudi Temple and in such circumstances, I am of the view
that Ex.B-4 Gazetteer has to be taken as supporting evidence to decide as to
whether the Lord Pakkam Nindrar, i.e. Idol of Lord Siva, was situated in the
Vaishnavaite Temple, namely Arulmighu Azhagiya Nambirayar Temple, and so, the
Lord Pakkam Nindrar was in existence from ancient times.
85. In Ex.B-5 is the “Kumbhabhishekam Invitation” (consecration
invitation), namely, “= jpUf;FWA;Fo = !;thkp ek;gpapDila tpkhehjp $Ph;Bzhjhuz
gpujp&;lh gj;jpupif”@ which is of the year 1911, in which it is stated that the
Kumbhabhishekam is also being performed for the Lord “Pakkam Nindrar”. It is
stated therein as follows:
@ “…… epiwe;j Brhjpbts;sk; R{H;e;j ePz;l bghd;BkdpBahLk;
vGe;jUspapUf;fpw ek;gpapDila ”bjd;dd; FWA;Foa[s; brk;gtsf;Fd;wpid’ vd;Dk;
g;uthshf;a tpkhej;jpd; $Ph;BzhjhuzKk;, tPw;wpUe;j ek;gp tpkhdk; gs;spbfhz;l
ek;gp tpkhdk;. FWA;Foty;ypj;jhahh; FWA;ifehafp tpkhdk;.
mf;Fk;g[ypapdjSKilahwtbuhUth; gf;fk; epw;fpd;w gf;f epd;whuhd kBcwe;jpufphpehjh;
tpkhdk; ……. ”
86. In Ex.B-6 book called “@ifrpf g[uhzk; (gl;lh; t;ahf;ahzj;Jld;)”@, a
topic is mentioned about “@ek;gpa[k; ek;ghLthDk;”@, in which, there is a
reference as @”mf;Fk; g[ypapd”;@.
87. In Ex.B-8 which is the book titled @guk;giur; rpwg;g[@ of
Thirukurungudi Madathipathi Sri Perarulaala Ramanuja Jeer Swamigal, was
published in 1919, and it is the pamphlet exhibiting the importance of
Thirukurungudi Mutt. In Ex.B-8, it is stated as follows:
@”KLf;F@”
1. … bghpabgUkhbsd;Dk; epd;w ek;gpf;Fk; – bgUikahfbt tPw;wpe;j
ek;gpf;Fk; – cuBfrd; kPJ radpj;j ek;gpf;Fk; – chpikahfbt gf;fk; epd;dhh;f;Fk;
fhy iguth; Kjyhd Bjth;fVshA;Fk; – gz;ghd Bfhtpy;fSf;F !;JhgpfSk; –
rhpiahaikj;Js;spYs;s Kh;j;jpfl;Fk;-rh!;jpug;go glhr;rhjdq;bra;Jk;-fhpakhyhkHf
ek;gpa[s; kfpH-fdkpF”;rpj;jpuj; Bjbuhd;wikj;Jk;-bghpa jpUkjpy;fspy;
gpd;dKw;wjid-bghpajha;e;J rPuhf;fp _ gypkz;lgj;jpw;-Fwpaew;wpUg;gzpfs; gjpide;J
gj;jp cte;j Bgud;gpdhy; cWjpaha;r; bra;Jk-MyA;Fsk; Cr;rpf; Fsbkd;DKhpy;
mwpatpk;klj;jpw;F ghj;jpag;gl;l-nkyhdnahpfspy; kilfSk;fl;o … ”
This shows that during the tenure of 35th Jeer, His Holiness did the above works
and the Lord Pakkam Nindrar/Lord Shiva, was in existence even at that time.
88. Ex.B-9 is the book titled @_ mHfpaek;gp cyh jpUf;FWA;Fo@, and it was
published in 1983, and in Ex.B-9, it is stated as follows:
@ “… tps;Skt dhkk; tpsA;FKh; – cs;skfpH;
Bfhokfh jPh;j;jA; Fyt[jy bkd;Wtpz;Bzhh;
ehoapiwq; RA;FWA;if ed;dfuhd-tPLbgw
Berpj; jyh;brhhpe;J epd;bwGgj; bjz;gpukh;
g{rpj; jpdpBjj;Jk; bghw;gjj;jhd; – Bjrpfkhq;
brf;fr; rpte;j brGq;Rliug; Bgjkwg;
gf;fj;jpy; itj;j ghptpdhd; …@”
This shows that the Lord Shiva has been in existence.
89. In Ex.B-10 which is also the book titled “@jpUf;FWA;Fo mHfpa
ek;gpa[yh”@, published in 1981, there is a mention about the Lord
Mahendragirinathar “(gf;fk; epd;whh;)”. This also shows that the Lord Shiva
was in existence.
90. Ex.B-11 which is the sloga @totHfpa !_g;ughjk;@, which was published
in 1992, it is stated as follows:
“@jhahh; !_g;ughjk;@”
(7) !j;BToj;ughyfphp$hgjpB!t;akhd fhuz;lg[&;fhpzp fhjl!_!;jpBjd !
fpU&;Bze !k;a[j f;Ughfu fhkUg b!se;jh;a g{h;z gfte; jt !_g;ughjk;/
gjt[iu
!j;BT&j;ughy-iguth; vd;w BT&j;ughyuhYk; fphp$hgjp gf;fepd;whuhd
rptgpuhdhYk; B!t;akhd-bjhHg;gl;ltBd?””
91. In Ex.B-12 which is the book @MH;thh;fs; fhyepiy (Kjw;gFjp)@ there is
a mention about “Thirumangai Azhwar” who was alive during 7th Century, and in
Ex.B-12, it is stated as follows:
“@… MH;thh;fsp xUfhyj;jtuhfBt jpt;atr{hprhpjk; bjspthff; TWjypfspw;
bgUk;ghByhh; gukgjk;bgw;w gpd;g[k; thH;e;j jpUkA;ifkd;dd; vd;Bw, Bkw;Fwpj;j
rhpj;jpuBtW ehk; nizj;Jf;bfhs;sj;jFk;. m jhtJ – Kd;dh; Bghe;jthW. 7-Mk;
Eh}w;whz;od; gpw;gFjpapy; mtjhpj; Eh}w;whz;od; nilg;gFjpapy;
jpUehlyA’;fhpj;jth;thh; vd;gjhk;”@
92. So, those documents and evidence of the defendants through D.W.4 show
that the Lord Pakkam Nindrar / Mahendragirinathar was in the original place
eversince from 1911. As per the documents, it is clearly proved that the Lord
Pakkam Nindrar was there even during the period of the Saint Thirumangai Azhwar,
who recited the “Pasuram” (Divine Hymn), in which His Holiness Thirumangai
Azhwar has stated that “@mf;Fk;g[y[padjS KilahutbuhUth; gf;;fk;epw;fepd;w
gz;gUh;BghYk”; ………. FWA’;FoBa@ and hence, it could be concluded that the
Lord Shiva Mahendragirinathar was there in Thirukurungudi even during 7th
Century when the Saint Thirumangai Azhwar lived.
93. In this context, learned counsel for the plaintiffs relied on the
decision of the Supreme Court reported in AIR 1966 SC 605 (Ambika Prasad Vs. Ram
Ekbal), wherein, the Apex Court held as follows:
“15. ….. The presumption of future continuance is noticed in
Illustration (d) of Section 114 of the Indian Evidence Act, 1872. In appropriate
cases, an inference of the continuity of a thing or state of things backwards
may be drawn under this section, though on this point the section does not give
a separate illustration. The rule that the presumption of continuance may
operate retrospectively has been recognised both in India …. and England,
…… that there is no rule of evidence by which one can presume the continuity
of things backwards cannot be supported. The presumption of continuity weakens
with the passage of time. How far the presumption may be drawn both backwards
and forwards depends upon the nature of the thing and the surrounding
circumstances. … ”
In the present case, the Lord Shiva Idol/Lord Mahendragirinathar was there from
time immemorial. First defendant-Jeer failed to prove that the Lord Shiva Idol
was only later addition. Since the Jeer is the competent person who has
succeeded the Trusteeship of the Thirukurungudi Mutt, i.e. His Holiness Jeer is
the Madathipathi, he would have possessed all the relevant documents in respect
of the “Sthala Puranam” and other aspects relating to the existence of the Lord
Shiva Idol. For non-filing of those relevant documents, this Court has to draw
adverse inference against the authorities of the Mutt/Jeer. So, I am of the view
that the abovesaid citation reported in AIR 1966 SC 605, is squarely applicable
to the facts of the present case.
94. Now, this Court has to consider as to whether the Deity/Idol of Lord
Shiva has been removed from its original place in accordance with “Agama
Saastras”. Admittedly, the plaintiffs have not stated about the “Agama
Saastras”, but defendants 1 to 3 alone raised a plea that they have to remove
the Lord Shiva Idol from the place where it was originally situated till it was
removed and disturbed only to instal the same in accordance with “Agama
Saastras”. Since the defendants 1 to 3 have raised such a plea, it is their duty
to prove that only in accordance with “Agama Saastras”, they have removed the
Idol of Lord Shiva.
95. Admittedly, the first defendant-Jeer mentioned in the written
statement that the Idol of Lord Shiva has been removed only as per the “Agama
Saastras” requirements. In this context, it is worthwhile to mention that the
defendants have never proved that they made changes in the Temple by shifting
the Idol of Lord Shiva only in accordance with “Agama” principles.
96. It is pertinent to note that “Agamas” are a set of ancient texts and
are the guardians of the tradition. The “Agama Saastras” specify the conduct of
worship services, rites, rituals, and festivals and the principles and practices
of “Deity” worship. Thus, the “Agama Saastras” is basically concerned with the
attitudes, procedures and rituals of “Deity” worship in the Temples.
97. At this juncture, learned counsel for the plaintiffs submitted that it
is true that the Temples are constructed in accordance with “Agama Saastras”;
even some of the ancient Temples are not constructed and the Deities were not
incarnated according to “Agama Saastras”, but there is one more Temple custom
called as “Sishtachar” (Virtuous practice and the practice of great people) and
from time immemorial, the authorities follow the said Temple custom-Sishtachar.
Admittedly, in respect of offering “Neivediyam” (Food to Divine God), i.e. to
Lord Vishnu, at that time, the “Bhattachariyars” (Temple Priest of Lord Vishnu)
questions the “Sivachariyar” (Temple Priest of Lord Shiva) as to whether the
Lord Shiva Had His Food, namely “Amudhu Undara” (mKJ cz;lhwh), which is the
Temple custom of Thirukurungudi Temple, i.e. it is a “Sishtachar”. Further, the
Divine Feet of Lord Vishnu, called as “Sadari”, has been handed over by
“Araiyars” (miwah;fs;) to “Thayaar” (Goddess Lakshmi), even though the said
“Sadari” is not usually touched by any other person except the “Bhattachariyars”
of the Lord Vishnu Deity. Learned counsel also mentioned that in so many Temples
in Tamil Nadu, namely Tirunelveli, Chidambaram,Tiruchendur, etc., which are
Saivaite Temples, the Lord Vishnu is being installed. Likewise, in
Thirukurungudi, the Lord Pakkam Nindrar / Lord Shiva, had been incarnated.
Learned counsel culled out some portion of the plaint, regarding the existence
of Lord Vishnu in Saivaite Temples, and the relevant portion of the plaint reads
as follows:
“@6. ….. rkaj;jpdhplKk; rka bghiwia Vw;gLj;j rptd; Bfhtpy;fspy; bgUkhs;
rd;djpa[k;. bgUkhs; Bfhtpy;fspy; rptd; rd;djpa[k;. gy nlA;fspy; mike;Js;sd.
cjhuzkhf jpUbey;Btypapy; cs;s mUs;kpF bey;iyag;gh; jpUf;Bfhtpypy; rptd;
rd;djpf;F mUfpy; gs;sp bfhz;l bgUkhs; rd;djp cs;sJ. jpUr;bre;Jh}h; mUs;kpF
Rg;gpukzpa Rthkp BfhtpypYk; bgUkhs; rd;djp cs;sJ. mBjBghy; kpft[k; g[fH;bgw;w
rpjk;guk; jpUf;BfhtpypYk; bgUkhSf;F rd;djp cs;sJ. ne;j gHikahd mikg;ghdJ
gz;ghl;Lr; rpd;dkhFk;. rka xw;Wikia milahsr; rpd;dkhf fhl;Lk; rhl;rpfs; MFk;.
…..”@
Admittedly, there is no quarrel over the said argument.
98. Learned counsel for the plaintiffs submitted that Thirukurungudi is a
special Temple and it is having both Lord Shiva and Lord Vishnu Sannadhis, and
in the State of Tamil Nadu, in many Vaishnavaite Temples, Lord Sivan Sannadhi is
in existence and vice-versa, and to substantiate his argument, learned counsel
for the plaintiffs relied on a judgment reported in 2009 (4) CTC 801 (Division
Bench of this Court) (Sri Sabhanayagar Temple, Chidambaram Vs. The State of
Tamil Nadu), and the special character of Thirukurungudi Temple is the existence
of Sivan Sannadhi. As already observed, in Saivaite Temples in Chidambaram,
Tiruchendur, Tirukoshtiyur and Kancheepuram, the Lord Vishnu’s Sannadhi is in
existence and hence, Thirukurungudi Temple is meant both for Saivaite and
Vaishnavaite religious groups and these two religious groups are offering
worship and prayer every day and they belong to different faiths.
99. It is also pertinent to note that in the written statement filed by
First defendant-Jeer, it is stated that the Temple is unique in its
architectural conception and iconographic formation having three Shrines decided
to the Lord Vishnu, in the Standing, Sitting and Reclining Postures, all facing
East as prescribed in Vaikhanasa Agama, the scripture followed in the Temple.
But it has to be noted that since the Thirukurungudi Temple is a Special Temple
consisting of both Saivaite and Vaishnavaite Lords, and hence, I am of the view
that neither the First defendant-Jeer, nor D2 and D3 (H.R. & C.E. Authorities),
have the authority or right to remove the Idol of Lord Shiva from the original
place.
100. It is also relevant to note as mentioned in the written statement
filed by D-1Jeer, in paragraph 5, as follows:
“5. The Sthala Purana has it that Lord Siva, while wandering in the
Mahendragiri Forests, was afflicted by some curse and Sri Sundara Paripooranar,
the Lord of this Temple gave Dharshan and requested Him to stay there. That is
why the great Vaishnavaite Saint Thirumangai Azhwar has sung in praise of Lord
Shiva and referred to His as “Pakkam Nindraar”. This expression in the Pasuram
is wrongly construed in the plaint as “Standing Close” overlooking the inner
meaning that Siva and Vishnu are always together. …”
But to prove the said contents of the written statement filed by the first
defendant-Jeer, no document has been filed by the first defendant-Jeer. But the
documents exhibited before the trial Court show that even in 1911, the Temple
Consecration (Kumbhabhishekam) had been performed and it is stated in the
documents that the Temple Consecration was performed for the “Vimanam of Pakkan
Nindrar” also, along with the Vimanam of the Lord Azhagiya Nambirayar. In such
circumstances, I am of the view that the argument advanced by learned counsel
for the defendants that the Lord Shiva had been removed from the Hill Top and
installed in front of the Veetrirundha Nambi, is an unacceptable one.
101. D.W.4, the witness of the first defendant-Jeer Mutt, is well-versed
about the “Agama Saastras”; D.W.4 in his evidence, fairly conceded in cross-
examination that in most of the Temples, “Agama Saastras” are not followed, but
“Sishtachar” is being followed. Further, it is to be noted that in Thirumogur,
“Thaayaar Sannadhi” has been obscuring the view of “Sakkarathazhwar” and in
Thirukoshtiyur, the Lord Siva is obscuring the Lord Kannan Sannidhi. Hence,
learned counsel for the plaintiffs submitted that establishment of Lord
Mahendragirinathar Temple at Thirukurungudi, is only a “Sishtachar” and that has
been clarified by the evidence of D.W.4. Hence, D.W.4 is the person who is
competent to depose about the “Agama Saastras” and “Sishtachar”.
102. At this juncture, it is also relevant to consider the oral evidence
of D.W.5, who was the Junior to the “Bhattachariyar” of the Temple and who has
also been examined on behalf of the first defendant-Jeer of the Mutt, and in his
deposition, D.W.5 has stated as follows:
“@…….. ng;bghGJ g[jpjhf fl;lg;gl;Ls;s nlj;jpy; rptid ghpthuA;fSld;
gpujp&;il bra;jhy; itfhd! Mfkgo mike;j rd;djpahf tpsA;Fk; vd;W bjhptpj;Jf;
bfhs;fpBwd;. …”@
@”@rptd; rd;djp vt;tst[ Mz;Lfhykhf nUe;J tUfpwJ vd;W bjhpahJ. ehA;fs;
gz;ojh;fs; Brh;e;J KobtLj;j tprak; Mfk hPjpahf cs;s tpraA;fs; mog;gilapy;jhd;.
BtW fhuzA;fs; ny;iy. me;j Bfhtpy; jpt;aKh;j;jp !;jhgdk;. jpt;aKh;j;jp vd;gJ
tp&;Z rptd; mika[k; nlkhFk. itfhdr Mfkj;jpy; vd;bdd;d bja;tA;fis vA;bfA;F
gpujp&lil bra;aBtz;Lbkd;W Twg;gl;Ls;sJ. vd;bdd;d bja;tA;fis ve;bje;j nlj;jpy;
gpujp&;il bra;af;TlhJ vd;W VJk; mjpy; ny;iy. …@”@
“@@…. jpUKft{hpy; rf;fuj;jhH;thh; rd;djpia kiwj;J jhahh; rd;djp
mike;Js;sJ. jpUf;Bfhl;oa{hpy; Kyth; fz;zd; rd;djpia kiwj;J rptd; rd;djp
mikf;fg;gl;Ls;sJ vd;why; rhpjhd;. mt;thW mikf;f Mfk tpjpfs; nlk; bfhLf;fpwJ
vd;why; rhpjhd;. mt;thW mikf;f Mfk tpjpfs; nlk; bfhLf;fpwJ vd;gJ gw;wp
bjhpe;jth;fSk; Mfk gz;oj bghpath;fSk; mA;F cs;sdh. jpUf;FWA;Fo epiwa Mfk
gz;ojh;fSk; uhkhD$h; cl;gl gyh; te;J brd;w !;jyk; MFk;. btA;fl;uhk gz;ojh;
Bghd;wth;fs; mA;F trpj;jth;fs;. mth;fs; fhyj;jpy; vtUk; mfw;wg;gl;l rptd; rd;djp
Mfk tpBuhjk; vd;W fUjtpy;iy vd;why; rhpjhd;. …@”@
“@… 1981y; ele;j Fk;ghgpB&fj;jpy; fye;Js;Bsd;. btA;fl;uhk gl;lh; jiyik
gl;luhf nUe;jhh. Bfhghy gl;lUk; cldpUe;jhh;. me;j Beuj;jpy; rptDf;Fk; gf;fk;
epd;whUf;Fk; nUtUf;Fkhd Bfhg[uA;fSf;Fk; Fk;ghgpB&fk; ele;jJ. gf;fk; epd;whh;
mUfpy; nUg;gJ Mfk tpBuhjk; vd;W Bfhghy gl;lBuh btA;fl;uhk gl;lBuh VJk; Twtpy;iy.
Mfk tpBuhjk; vd;why; mij ijhpakhf brhy;yf;Toa mstpy; mth;fs; ijhpakhdth;fs;.
mth;fSf;F Jzpt[k; bjspt[k; cz;L.”@@
103. So, as per the evidence of D.Ws.4 and 5, it is clearly proved that
the Lord Shiva Temple obscuring the view of the Lord Veetrirundha Nambi, is
amounting to “Sishtachar” and it is not in violation of the “Agama Saastras”.
Furthermore, there is no clinching evidence to show that only for curing the
defects and to act in accordance with “Agama Saastras”, the Lord Shiva Idol had
been removed. So, the contention of the first defendant-Jeer in this regard is
unacceptable.
104. Learned Spl.G.P. appearing for H.R. & C.E./District Collector,
submitted that in the present case, the public has presented an application for
shifting of the Lord Shiva Deity and only considering the same, the Idol of Lord
Shiva was shifted. He further submitted that the Government ratified the action
of the first defendant-Jeer for removal of the Idol of Lord Shiva and to keep
the Idol for worship in the new place in accordance with Hindu Agama Saastras.
105. In this regard, learned counsel for D-1 relied upon the decision
reported in AIR 1960 SC 100 (Narayan Vs. Gopal), wherein, while referring to the
Judgment of the Bombay High Court reported in ILR 44 Bombay 466 = AIR 1920
Bombay 67 (2) (Hari Raghunath Vs. Antaji Bhikaji), the Apex Court held as
follows:
“36. In Hari Raghunath Vs. Antaji Bhikaji ILR 44 Bom 466 : (AIR 1920 Bom
67 (2) ), the temple was a public one. It was held by the High Court that under
Hindu law, the manager of a public temple has no right to remove the image from
the old temple and instal it in another new building, especially when the
removal is objected to by a majority of the worshippers. …. …
The case is an authority for the proposition that the idol cannot be
removed permanently to another place, because that would be tantamount to
establishing a new temple. However, if the public agreed to a temporary removal,
it could be done for a valid reason.”
106. Therefore, learned Spl.G.P. and learned counsel for D-1 Jeer
submitted that the first defendant-Jeer and D-2 and D3/H.R. & C.E. Department
considered the said aspect and the Government ratified the action of removal of
the Idol of Lord Shiva, in G.O.(Ms.).No,54 dated 8.4.2005, by ordering for
removal and hence, they prayed for dismissal of the Second Appeals.
107. Relying upon the said decision reported in AIR 1960 SC 100 (cited
supra), it is contended by learned counsel for the plaintiffs stated that the
Idol of Lord Shiva cannot be removed permanently to another place, because, that
would tantamount to establishment of a new Temple, but however, if the public
agreed to temporarily remove the Idol, it can be done for valid reasons. In the
present case, there is no document to show that the removal was only temporary
and there is also no document to show that the public agreed for temporary
removal. The said citation (AIR 1960 SC 100) only favours the plaintiff and
against the first defendant-Jeer.
108. Hence, I am of the view that the first defendant-Jeer has no right to
remove the Idol of Lord Shiva, in view of the letters/correspondences between
the first defendant-Jeer and D2 and D3/H.R. & C.E. authorities. Even during the
pendency of the suit, the permission has been accorded by the Government by
passing the G.O.(Ms).No.55, dated 8.4.2005 by ratifying the action of the first
defendant-Jeer. The communications between the first defendant-Jeer and D-2 and
D-3/H.R. & C.E. authorities, clearly proved that the first defendant-Jeer has no
right to remove the Idol of Lord Shiva.
109. Further, learned counsel for the plaintiffs submitted that the first
defendant-Jeer has no right as per the provisions of Section 3 of “The Places
of Worship (Special Provisions) Act, 1991 (Act 42 of 1991), and hence, the Jeer
is not entitled to convert the place of worship. Section 3 of the said Act 42
of 1991 reads as follows:
“Section 3: Bar of conversion of places of worship.–No person shall convert any
place of worship of any religious denomination or any section thereof into a
place of worship of a different section of the same religious denomination or of
a different religious denomination or any section thereof.”
On this aspect, learned counsel for First defendant-Jeer stated that such
provisions of Section 3 of Act 42 of 1991 is not applicable to the case on hand,
which cannot be countenanced by this Court, since the Lord Shiva / Pakkam
Nindrar Idol was admittedly situated in front of the Lord “Veetrirundha Nambi”;
further, as per the evidence of DW4 (examined on behalf of First defendant-
Jeer), who was the “Srikariyam” (Manager) of the Mutt, the Lord Shiva had been
in existence more than 200 years, which has now been removed and kept in “Dhanya
Vaasam” (In Paddy). Only after coming into force of the said Act 42 of 1991, the
Temple authorities wanted to instal the Lord Shiva Idol from the original place
to the Third Prakaram (III Quadrant) of the Temple and for this reason only, it
has been changed from the original place. Therefore, I am of the view that the
argument advanced by learned counsel for First defendant-Jeer does not merit
acceptance.
110. Furthermore, admittedly, Thirukurungudi Temple, which is one of “108
Divya Desams” of the Lord Vishnu, is a Special Temple, having both Saivaite Gods
and Vaishnavaite Gods. First defendant-Jeer removed the Lord Shiva to admittedly
instal the same in a separate Temple constructed only for Saivaites, has
literally changed the character of the Thirukurungudi Azhagiya Nambirayar
Temple. Hence, I am of the view that the provisions of Section 3 of the said Act
42 of 1991 will squarely apply to the facts of the case on hand.
111. Nextly, learned counsel for the plaintiffs submitted that First
defendant-Jeer is not entitled to pick up one or other statement here and there
from the evidence of D.Ws.1 and 2 and such an approach is not permissible under
law. To substantiate this contention, learned counsel for the plaintiffs relied
on the decision of the Supreme Court reported in 2000 (3) MLJ 199 (SC) (Boramma
Vs. Krishna Gowda), wherein the Apex Court held as follows:
“10. … it will not be a sound rule of appreciation of evidence to pick
up an answer from the cross-examination of a witness and draw inference taking
it in isolation. The court must see as to how consistent the testimony of the
witness is and as to how that answer fits in with the rest of the evidence and
probabilities of the case. …”
It is true that the Court must see as to how consistent the testimony of the
witness is, and as to ho the answer fits in with the rest of the evidence and
probabilities of the case. The Court cannot pick and choose one or two
statements from the cross-examination of the witnesses and rely upon the same.
Though there is no quarrel over the law laid down in the said decision reported
in 2000 (3) MLJ 199 (SC) (cited supra), the same is not the case here, because
in this case, the evidence of the witnesses D.Ws.4 and 5 are relied on the whole
in respect of the pleadings raised by the parties.
112. Learned counsel for the plaintiffs submitted that non-examination of
the first defendant-Jeer, is fatal and in this regard, he relied on a decision
of the Supreme Court reported in 2005 SAR (Civil) 103 (Janki Vashdeo Bhojwani
and another Vs. Indusind Bank Ltd. and others), wherein the Apex Court held as
follows:
“14. Apart from what has been stated, this Court in the case of Vidhyadhar
Vs. Manlkrao and another, 1999 (3) SCC 573, observed at page 583 SCC that,
“where a party to the suit does not appear in the witness-box and states his own
case on oath and does not offer himself to be cross-examined by the other side,
a presumption would arise that the case set up by him is not correct”.
In civil dispute the conduct of the parties is material. The appellants
have not approached the Court with clean hands. From the conduct of the parties
it is apparent that it was a ploy to salvage the property from sale in the
execution of Decree.”
Relying on the said decision reported in 2005 SAR (Civil) 103 (Janki Vashdeo
Bhojwani and another Vs. Indusind Bank Ltd. and others), it is contended by
learned for the plaintiffs, that in the pleadings, the defendants stated that
they acted according to the “Agama Saastras” and to prove the “Agama Saastras”,
none has been examined; either the “Jeer” or the “Agama Pandithar” ought to have
been examined on the side of First defendant-Jeer, but they have not appeared
and not been examined before Court. This decision is not applicable to the facts
of the present case, because, in the present case, on behalf of First defendant-
Jeer, the “Srikariyam” (Manager) of the Mutt had been examined as D.W.4
(Narayanan). In such circumstances, I do not find any merit in the said argument
advanced by learned counsel for the plaintiffs based on the said decision.
Furthermore, it is the duty of First defendant-Jeer to prove the averments made
in the written statement, and so, the non-examination of First defendant-Jeer
will not in any way affect the case of the defendants, since the Manager (DW4)
had been authorised on behalf of the Jeer-Mutt to depose the evidence.
113. Learned counsel for First defendant-Jeer submitted that the first
defendant-Jeer has right to remove and re-instal the Lord Shiva Idol in good
faith and to prove this contention, he relied on the decision of this Court
reported in AIR 1929 Madras 118 (Panchapagesa Gurukkal Vs. Sinna Sevugam
Chettiar), wherein a Division Bench of this Court held as follows:
“If there is no lack of good faith in the exercise of discretion by the
Dharmakartha or the Trustee in deciding whether a Temple is so dilapidated as to
admit entire renovation, there seems to be no legal principle enabling the Court
to review the discretion of the Dharmakartha.”
This citation (AIR 1929 Madras 118) is not applicable to the facts of the
present case, because, since 1300 years ago, the Lord Shiva – Pakkam Nindrar was
there and as per the version of D.W.4 examined on behalf of First defendant-
Jeer, it was there for more than nearly 200 years and after the Temple
Consecration (Kumbhabhishekam) had been performed, the Temple authorities did
not take any steps to conduct the alleged “Deva Prasannam” for removal of the
Deity Lord Shiva from the original place and re-instal the Lord Shiva Idol to
some other place. Furthermore, as per Rule 52 of the Management and
Preservation of Properties of Religious Institutions Rules, without prior
permission, the Temple authorities have removed the Lord Shiva Idol and
explanation has also been called for from the Jeer and since the Temple is under
the control of the H.R. & C.E. Department, First defendant-Jeer has no right to
remove the same. Furthermore, the said decision relates only to renovation of
the Temple, and not regarding the removal of any Deity/Idol and installing the
same to some other place and hence, it is not applicable to the facts of the
present case.
Deva Prasannam:
114. “Deva Prasannam” is the Division of Astrology to find out the “Will”
of the God (Devahitam). There is an expectation by devotees that The God “Parama
Siva” had created Thirty Three Crores Demi-Gods in this Universe. It is clearly
depicted in the Astrological book about the different expressions and
peculiarity of their state. There can be many more things in a Temple which
create damage to the Divine life force or vigour. For recognising these damages
in time and curing this by fostering the worship of God, the Astrologers totally
depend on Astrology, a part of spiritual knowledge or holy scriptures. As all
these think about God’s subject, it is termed as “Deva Prasannam”. An Astrologer
needs scientific knowledge, “Guru Kripa”, God’s Grace, beyond above all, he
should have the blessings of God of the particular Temple in which he is
dealing, then only, the result of the Astrological calculation will be
favourable or pleasing.
115. Learned counsel appearing for the plaintiffs submitted that the
defendants in their written statement pleaded that the Tantric Unnikrishnan
Panicker, has given “Deva Prasannam”—The Voice of God. As per the Deva
Prasannam only, the Idol of Lord Shiva-Mahendragirinathar was removed from the
original place. At this juncture, learned counsel for the plaintiffs submitted
that Deva Prasannam is recognised only in Kerala State and not in the State of
Tamil Nadu and so, the arguments of the learned counsel for the defendants
cannot be looked into. In this regard, learned counsel for the defendants
submitted that the Deva Prasannam had been conducted to hear the “Voice of God”
only to cure the defects mentioned and the Deva Prasannam is a recognised one.
To substantiate the same, learned counsel for the defendants relied upon the
decisions reported in AIR 1993 Kerala 42 (S.Mahendran Vs. Secretary, Travancore
Devaswom Board) and AIR 1925 Privy Council 139 (Pramatha Nath Vs. Pradhyumna
Kumar), and in the respective decisions, it is held as follows:
AIR 1993 Kerala 42 (S.Mahendran Vs. Secretary, Travancore Devaswom Board):
“36. The Thanthri of the temple Sri Maheswararu had mentioned about the
Devaprasnams conducted at Sabarimala by well known astrologers in Ext.C2. He had
mentioned in that reply that in all the Devaprasnams it was revealed that young
women should not be permitted to worship at the temple. The report of the
Devaprasnam conducted in 1985 (from 5.4.1985 to 8.4.1985) was exhibited as
Ext.C1. That is a Devaswom publication, the authenticity of which is not in
dispute. The English translation of the relevant portion contained at page 7 of
the original report reads as follows:
“It is seen that the deity does not like young ladies entering the
precincts of the temple.”
C.W.5, the Secretary of the Ayyappa Seva Sangham, who was present at the time of
Devaprasnam had spoken about what was revealed at the Devaprasnam. First
respondent in its counter affidavit has mentioned about the practice followed to
set right controversial religious and ritualistic problems. It is stated that
the Thanthri will suggest that it can be resolved by a Devaprasnam. The practice
of resorting to Devaprasnam to ascertain the wishes of the deity had been in
vogue from time immemorial and the Thanthri of Sabarimala also had suggested
conduct of Devaprasnam whenever occasion arose. The report of the Devaprasnam is
rather conclusive or decisive. The wishes of the Lord were thus revealed through
the well-known method of Devaprasnam and the temple authorities and worshippers
cannot go against such wishes. If the wish of Lord Ayyappa as revealed in the
Devaprasnam conducted at the temple is to prohibit woman of a particular age
group from worshipping in the temple, the same has to be honoured and followed
by the worshippers and the temple authorities. The Board has a duty to implement
the astrological findings and prediction on Devaprasnam. The Board has therefore
no power to act against the report which will be virtually disregarding the
wishes of the deity revealed in the prasnam.”
116. Admittedly, in Kerala, “Deva Prasannam” is conducted in all the
Temples for performing the Poojas and other related matters. But there is no
citation produced to prove that the “Deva Prasannam” is conducted in every
Temple in the State of Tamil Nadu and seeing the “Deva Prasannam” is the
practice prevailing in the Tamil Nadu while performing the annual Poojas and
“Kumbhabhishekarm” and other related matters.
AIR 1925 Privy Council 139 (Pramatha Nath Vs. Pradhyumna Kumar):
“It is open to an idol acting through its guardian the Shebait, to conduct
its worship in its own way at its own place always on the assumption that the
acts of the shebait expressing its will are not inconsistent with the reverent
and proper conduct of its worship by those members of the family who render
service and pay homage to it.”
The above citation in AIR 1925 Privy Council 139, is not applicable to the facts
of the present case, because, the Idol is a juristic person and the Shebait is
its representative and it can sue and be sued and the Idol can express its will
through “Shebait”.
117. There is no evidence to show that the Deva Prasannam was an accepted
practice in the State of Tamil Nadu. There is no decision to show that Deva
Prasannam is well-known in the State of Tamil Nadu. In Ex.B-16, which is the
book titled “Srirangam Koil Prasnam”, there is a mention about the dates A.C.
7th, 8th and 9th February, 2001, on which dates, “Deva Prasannam” was conducted
in the said Srirangam Temple by the same Tantric, namely Shri.Unni Krishnan. In
this context, it is to be noted that the “Deva Prasannam” of Arulmighu Azhagiya
Nambirayar Temple at Thirukurungudi, was performed on 22.8.1996 by the same
Trantric Unni Krishnan, which is admittedly before the conduct of “Deva
Prasannam” at Srirangam Temple, which was in 2001. Hence, the argument advanced
by learned counsel for defendants that the “Deva Prasannam” is recognised in the
State of Tamil Nadu, as in Srirangam as stated above, the “Deva Prasannam” was
conducted, does not merit acceptance. Further, there is no document to show that
before the conduct of “Deva Prasannam” at Thirukurungudi, the “Deva Prasannam”
was conducted in the Temples of the State of Tamil Nadu. Admittedly, Mr.Muthiah
Sthabathai, who is the Sthabathi-Sculptor of the Tamil Nadu H.R. & C.E.
Department, was representing the State of Tamil Nadu and if really the said
“Deva Prasannam” was earlier conducted in Tamil Nadu, some persons would have
been nominated for such a post like the said Sthapathi-Sculptor. In such
circumstances, I am of the view that the argument advanced by learned counsel
for the defendants that the Deva Prasannam is accepted in the State of Tamil
Nadu, does not merit acceptance. Furthermore, Tantric Unnikrishnan Panicker was
not examined before Court to prove the contents of the “Deva Prasannam”.
118. Learned counsel for First defendant-Jeer submitted that the suit by
worshippers against the custodian of the Deity, to look at it in a particular
place, is not maintainable before a Civil Court, as the plaintiffs are not
prevented from worshipping at the place where the Deity was situated before
removal. To substantiate the same, he relied upon a decision reported in AIR
1949 Orissa 1 (Radhakrishna Das Vs. Radharamana Swami), wherein the Orissa High
Court observed as follows:
“In a suit for a declaration that the alienation of the plaintiff deity
and its installation elsewhere is against the will and the interest of the
plaintiff deity and of its rights to revert to its original place of
installation, the Court must determine whether it is the will of the deity to be
so removed and whether it is in its interest to be so removed. It does not
matter whether the “next friend” who brings the suit is wholly disinterested.”
“The will of the deity must be determined in the light of what is in the
best interests of the idol. Where rival sebayets claim to represent the will of
the deity in conflicting ways, the duty of determining what should be the will
of the deity must ultimately devolve upon the Court.”
“A suit by a worshipper, not based on any right to the property in the
idol or to an office, against its custodians to locate it in a particular temple
instead of in another, there being no allegation that the plaintiff is prevented
from worshipping the idol at the latter temple, is not cognizable by the Civil
Court.”
While considering the said decision of the Orissa High Court, in that citation
also, the “Will” of the Deity has been considered by Court and in the facts
stated therein, there has been rival claims regarding the “Will” of the Deity
and in that background, it was held that the duty of determining as to what
should be the “Will” of the Deity, must ultimately devolve upon the Court.
Furthermore, in the present case, the Lord Shiva/Pakkam Nindraar was in front of
the Lord Deity Veetrirundha Nambi and now the proposal is to instal the Lord
Shiva Idol (which is now kept in “Dhanya Vaasam”) in the new Temple constructed
at the Third Prakaram (Quadrant). In such circumstances, the said decision of
the Orissa High Court is not applicable to the facts of the present case.
119. At this juncture, learned counsel for the plaintiffs submitted that
D.W.4 is the person who heard the Deva Prasannam, does not know Malayalam and
the Tantric Unnikrishna Panicker does not know Tamil and without any
Translator/Interpreter, it is not known as to how both D.W.4 and the Tantric
Unnikrishna Panicker interacted each other and as to how the Deva Prasannam was
reduced into writing. Learned counsel for the plaintiffs mainly focussed on this
point. Admittedly, the script of Deva Prasannam is filed as Ex.B-26. In the
said Ex.B-26, Tantric Unnikrishnan Panicker stated that the Idol of Lord Shiva
was installed only in a later point of time and also stated to be obscuring the
main Deity and so, the Tantric advised to re-instal the same into another place
as per the advice of sculptor (Sthabathi).
120. In this connection, learned Senior Counsel appearing for D7 to D9
submitted that Muthiah Sthabathi is the competent person in Tamil Nadu to fix
and find out the place as to where the Deity has to be installed. Learned Senior
Counsel further relied on Ex.B-38 which is the report of the Expert Committee in
the meeting held on 31.3.2003, and the said Expert Committee was appointed by
the H.R. & C.E. Department, and it consisted of the Joint Commissioner of
Tirunelveli H.R. & C.E. Department; Mr.Muthiah Sthabathi, “Sthabathi Alosakar”
of the H.R.& C.E. Department, Chennai as members and other members including the
experts in Agama Saastras, Sivacharya and Bhattacharya. It is stated therein
that while the said Expert Committee was going on, the “Saiva Peravai”,
K.Chockalingam (first plaintiff) and others, gave representation objecting to
the shifting of Lord Shiva Idol and on the said objection/representation, the
Expert Committee decided as follows (as translated from Ex.B-38):
“(i) The Sivalinga in the main sanctum sanctorum of the Shiva Temple shall
not be re-located.
(ii) But in the Demi God (Parivara) Temples, if the Siva Shrine is
dislodged or it is changed by some persons unexpectedly, we establish the same
again in the original place as per the Saastric customs. It could also be done
as per the “Prayachitta” Rules mentioned in the Saastras. For this,
Thirumoolar’s song could not be taken as example. Further, the Lingas are of
three types, namely Deivigam, Arsham and Manusham. Deivigam is installed by
Devas, Arsham is installed by Rishis. The ‘Suyambu’ lingas shall not be
disturbed. The Lingam at present belongs to Demi-God (Parivara). It was
installed recently. The Committee opines that it can be re-installed again in
appropriate place as per the practice and Saastric conventions.”
121. Learned Senior Counsel appearing for the defendants 7 to 9 relied
upon a Division Bench judgment of this Court reported in 2009 (4) CTC 143 (Akila
and K.Periyakaruppan Vs. The Government of Tamil Nadu), and also relied another
Division Bench judgment dated 19.8.2009 of Madurai Bench of this Court, in
W.P.(MD).No.8800 of 2008, and both the Division Benches have observed and
accepted the expert opinion given by Thiru.M.Muthiah Sthapathi,
President/Sthabathi Advisory Committee, H.R.& C.E. Department, Government of
Tamil Nadu. Learned Senior Counsel appearing for D7 to D9 therefore submitted
that the opinion of the said Muthiah Sthapathi, has been accepted by a Court of
law and his opinion has also been taken into consideration by the Division Bench
of this Court and orders passed thereon. In Ex.B-38, which is the report of the
Expert Committee appointed by the Tamil Nadu H.R. & C.E., the said Muthiah
Sthapathi who was also one of the members of the Expert Committee, viewed that
the Idol of Lord Shiva could be installed again in appropriate place as per the
practice and “Saastric” conventions.
122. D.Ws.1 and 2 stated that since the Temple was not in accordance with
the “Agama Saastras”, to rectify the defects and restore the “Agama Saastras”,
the Idol of Lord Shiva has been removed. But while perusing Ex.B-10, which is
the book titled “Azhagiya Nambi Ula”, it is specifically mentioned that for
giving “Dharshan” to “Nambaduvan”, the “Kodi Maram” of the Temple, moved from
its original place and so, the Temple is not in accordance with the “Agama
Saastras”. Admittedly, the authorities of the Temple/Mutt did not take any steps
to correct the position of “Kodi Maram” in accordance with “Agama Saastras”.
123. In this connection, it is appropriate to consider the arguments of
the learned counsel for the plaintiffs that some important Temples are
constructed in accordance with the “Agama Saastras” and in some Temples,
“Sishtachar” is being followed, which is also a recognised one and the same is
also being followed in the Thirukurungudi Temple from time immemorial and it is
not against the principles of “Agama Saastras” and that has been fortified by
the evidence of D.W.4.
124. At this juncture, it is appropriate to consider the evidence of
D.W.4, who stated as follows:
“@@ …!;jy g[uhzj;jpYk; fA;fhBjtp g[uhzj;jpYk; rptd; ve;j gf;fkhf
vA;F epw;fBtz;Lbkd;W Twg;gltpy;iy. rptbgUkhd; gf;fk; epw;gJ, bfhokuk; tpyfp
epw;gJ midj;Jk; g[uhzg;go vd;why; rhpjhd. me;j nuz;Lk; Mfkg;go my;;y. Mfkj;jpw;F
vjpuhf cs;sJ vd;why; rhpjhd. Mfkj;jpd;go my;yhkYk; g[uhzg;goahd mk;rgoa[k;
jpUf;Bfhtpy; mike;Js;sJ. mJBghd;w jdp eilKiwfis rp&;lhrhuk; vd;W Twthh;fs;. mJ
bghpBahh;fs; brhd;dJ. mija[k; Mfkk; Bghd;W Vw;fBtz;Lk;. Mfkg;goa[k; bghpBahh;fs;
brhd;dgoa[k; ele;Jbfhs;sBtz;Lk;. nuz;ow;Fk; xBu kjpg;g[jhd. ePz;lfhykhf
nUe;JtUk; eilKiwia ehA;fs; khw;Wtjw;fhd fhuzA;fs; xBu klg;gs;spapy; nUtUf;Fk;
bea;Btj;jpak; jahhpg;gJ Br&k; vd;gjhy; khw;wBtz;Lbkd;gJ fhuzk; vd;W
brhy;ypa[s;Bshk. …@”@
125. D.W.5 Raju @ Lakshmana Battar, who is the Temple Priest (Archakar) of
Thirukurungudi Temple, and who was examined on the side of the first defendant-
Jeer of the Mutt, stated in his evidence as follows:
“@@…. miwah;fs; rlhhpia vLj;J jhahhplk; xg;gilg;gJ rp&;lhrhuk; vd;w
eilKiwahFk;. rp&;lhrhuj;ij khw;wpaikf;f KoahJ. Mfkj;jpw;F bfhLf;Fk; khpahij
mjw;Fk; cz;L. khwhf i& braYf;F Mfkk; tpyfp tHpglBtz;Lk;. jilahf nUf;ff;TlhJ.
jpUf;FWA;Fo Mfk tpjpfSf;F tpyfp jdpj;jpUg;gJ mjd; rpwg;ghFk. 2 itzt MfkA;fSk;
KytUf;F Beh; vjpuhf bfhokuk; mikaBtz;Lbkd;W tpjp brhy;fpwJ. Mdhy; Mfkj;jpd;go
my;yhky; bfhokuk; tpyfp cs;sJ. mJ ek;ghLthDf;fhd jdp rpwg;ghFk;. mit Mfkj;jpw;F
vjpuhdJ vd;Wk; mij khw;wpaikf;f Btz;Lbkd;Wk; Mfk gz;ojh; vtUk; Twtpy;iy. mJ
rp&;lhrhuk; vd;gjhy; mij khw;wpaikf;f ahUk; Twg;Bghtjpy;iy/ rptd; rd;djp mUfpy;
cs;sJ Mfkj;jpw;F vjpuhdJ vd;gJjhd; vA;fs; fUj;J. mJ rp&;lhrhuj;jpy; tUfpwjh
ny;iyah vd;W ehA;fs; Mbyhrpf;ftpy;iy. …@ “@
126. So, both “Sishtachar” and “Agama Saastra” are having equal
importance. “Agama Saastras” have not been strictly followed in Thirukurungudi
Temple and “Sishtachar” has been followed. Furthermore, ‘Kodimaram’ is not in
accordance with the “Agama Saastras” in the Thirukurungudi Temple. Considering
the evidence of D.Ws.4 and 5, I am of the view that the defence raised by the
defendants that only as per the “Agama Saastras”, the Lord Shiva Idol had been
removed from the original place, does not merit acceptance.
127. In this context, it is appropriate to consider the arguments advanced
by learned Senior Counsel appearing for the defendants 7 to 9 that since the
villagers have given a representation that because the Lord Shiva is in the
Vaishnavaite Temple, the Saivaites are unable to perform the Poojas for
“Sivarathiri” and “Pradhosham”. But the above argument does not merit
acceptance, for the following reasons:
(i) Admittedly, even from the Seventh Century onwards i.e. during the
period of the Saint Thirumangai Azhwar , the Lord Shiva Shrine was there in the
original place of the Temple and even though the defendants submitted that the
Lord Shiva Idol is only a later addition, there is no evidence to show that the
Idol was installed only at a later point of time and no one has given
representation till 2003 for shifting of the Lord Shiva so as to perform the
Poojas of “Sivarathiri” and “Pradhosham”.
(ii) As per the evidence of D.W.4, the Lord Shiva Idol was installed in
the Temple nearly 200 years ago and till 2003, no one has given representation
for shifting the Idol of Lord Shiva, so as to perform the Poojas to Lord Shiva
on “Sivarathiri” and “Pradhosham” days.
(iii) Till 2003 and even when the “Deva Prasannam” was conducted in 1996,
no one has given representation for performing the said Poojas to Lord Shiva.
Hence, the argument advanced by the learned Senior Counsel for D7 toD9
that to fulfil the wishes of the villagers of Thirukurungudi, the Idol of Lord
Shiva had been removed, does not merit acceptance.
128. Further, the defence raised by D7 to D9 in their written statement is
that after the removal of the Idol of Lord Shiva from the place where it was
originally situated, there was been prosperity in the Village and there had been
copious rain. Admittedly, no oral or documentary evidence has been produced by
them on this aspect. Furthermore, as per the evidence of D.W.4, the Lord Shiva
Idol was in existence even before 200 years and there is no evidence for the
past 200 years that the people of the Village of Thirukurungudi were starving
and were in doom.
129. It is also pertinent to note that the “Lord Kala Bairavar” Shrine is
in the Temple at Thirukurungudi, since the inception of the Temple. Admittedly,
the “Lord Kala Bairavar” will only be in the Saivaite Temples. This has clearly
proved that the Idol of Lord Shiva been in existence from time immemorial and
the defendants have not taken any steps to instal the “Kala Bairavar” Shrine in
the newly constructed Temple.
130. From the ancient documents marked as Exhibits, which are already
discussed earlier in this judgment, it is clearly proved that the Lord “Pakkam
Nindrar” was there even during the period of Thirumangai Azhwar, i.e. in Seventh
Century. Hence, I am of the view that the removal of the Idol of Lord Shiva is
not in accordance with the “Agama Saastras”. Though the “Kodimaram” is situated
against the “Agama Saastras”, but no steps have been taken to instal the same
straight to the Deity.
131. Now this Court has to decide as to whether the shifting of the Lord
Shiva was on the basis of the “Deva Prasannam” without reference to “Agama
Saastras”. It is pertinent to note that conducting “Deva Prasannam” is not in
practice in the State of Tamil Nadu while performing “Jeernodharana
Kumbhabhishekam” (Temple consecration), as already discussed in this judgment.
132. In this context, it is appropriate to consider the written statement
filed by the first defendant, and in paragraphs 9 and 10, it is stated therein
that as per the tradition and accepted practice, before taking up the renovation
work, the “Deva Prasannam” was conducted to seek “Divine Sanction” and to
perform the requisite rituals found necessary to rectify the defects if any. In
paragraphs 9 and 10 of the written statement filed by First defendant, the
further disclosures of the “Deva Prasannam” were mentioned. But while perusing
Ex.B-38, which is the report of the Expert Committee appointed by the H.R. &
C.E. Department, it is seen that it does not contain the disclosures of the
“Deva Prasannam”. In paragraph 9 of the written statement filed by First
defendant, it is stated that, “the acclaimed Tantric Sri Unnikrishnan was
consulted and the divine ordination disclosed that the then dilapidated Siva
Temple on the north-east of the village known as Sri Analleswara Temple be
renovated first before the renovation work in the Azhagiya Nambiraya Perumal
Temple was taken up.” In paragraph 10 of the written statement filed by First
defendant, it is stated that, “The Deva Prasannam further diclosed that the
practice of preparation of Neivedyam in common in the Madapalli (Kitchen) in the
Temple was not proper and be discontinued. Since the offering thus made to Lord
Siva was inelegant as constituting a Sesham (residue) and that the separate
Shrine and Madapalli be built exclusively for Lord Siva as per Saastric
prescriptions.” But as already stated, only one “Madapalli” (Divine Kitchen) was
there in the Temple and that the Lord Pakkam Nindrar was there from time
immemorial even during the period of the Saint Thirumangai Azhwar. Furthermore,
as per the documents filed on behalf of the defendants, even during the period
of 35th Jeer, the Temple consecration (Kumbhabhishekam) was performed for Lord
Shiva “Pakkam Nindrar” along with the other Deities’ Gopuram (Vimanam), but no
one suggested to remove the same at that time. Even in the year 1911, the Temple
consecration was performed and during that period, it was not the case that at
that time, “Deva Prasannam” was conducted suggesting removal of the Lord Shiva
Shrine. Furthermore, as per the decision reported in AIR 1949 Orissa 1 (cited
supra), if there is conflict “Will” of the Lord as had been expressed by the
rival parties through the methods like “Deva Prasannam”, the Court has to
devolve upon the same and render its judgment. Admittedly, in this case, the
Deva Prasannam was conducted only by the Tantric Unni Krishna Panicker, and
there is no second person conflicting the views of the said Tantric in the
conduct of Deva Prasannam. In such circumstances, I am of the view that the
contention that only in accordance with “Deva Prasannam”, the Lord Shiva Idol
has been shifted, is unacceptable.
133. Moreover, while considering the day-to-day activities of the Temples,
only in the Temples of Kerala State, the “Deva Prasannam” was conducted, that
too, only for the performance of “Poojas” in the Temples and not for removal or
installation of any Deities. Hence, I am of the opinion that the first appellate
Court has erroneously come to the conclusion that the shifting of the Idol of
Lord Shiva was done on the basis of “Deva Prasannam”, without any reference to
“Agama Saastras”. As already discussed earlier, not only in Thirukurungudi
Azhagiya Nambi Temple, but in most of the famous Hindu Temples, the “Agama
Saastras” are not being followed, for example, in the Temples of Nataraja Swamy
at Chidambaram, Thirumogur Temple, Tiruchendur Subramanya Swamy Temple,
Thirukoshtiyur Temple, etc. So, the argument advanced by learned counsel for the
defendants that only as per “Deva Prasannam” and without any reference to “Agama
Saastras”, the Idol of Lord Shiva, was shifted, does not merit acceptance.
The substantial questions of law (iv), (vi), (vii) and (ix) are answered
in the above terms.
134. Substantial question of law (v):
Whether the lower appellate Court is right in holding that the first
respondent, viz., Jeer, has got powers to make changes, which according to him,
is against Agama Saastras ?
Learned counsel for the plaintiffs submitted that the Jeer is only the
Head of the Mutt, i.e. “Madathipathi” and since the Temple is under the
supervision and control of H.R. & C.E., the Jeer has got no powers to make
changes in the structures/Idols/Deities. To substantiate the same, he relied on
Sections 23 and 105 of the Tamil Nadu H.R. & C.E. Act, which read as follows:
Section 23: Powers and duties of Commissioner in respect of temples and
religious endowments:
Subject to the provisions of this Act, the administration of all temples
(including specific endowments attached thereto) and all religious endowments
shall be subject to the general superintendence and control of the Commissioner;
and such superintendence and control shall include the power to pass any orders
which may be deemed necessary to ensure that such temples and endowments are
properly administered and that their income is duly appropriated for the
purposes for which they were founded or exist:
Provided that the Commissioner shall not pass any order prejudicial to any
temple or endowment unless the trustees concerned have had a reasonable
opportunity of making their representations.”
Section 105: Saving: — Nothing contained in this Act shall–
(a) save as otherwise expressly provided in this Act or the rules made
thereunder, affect any honour, emolument or perquisite to which any person is
entitled by custom or otherwise in any religious institution, or its established
usage in regard to any other matter;
or
(b) authorise any interference with the 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.”
135. Section 6(13) of the Tamil Nadu H.R. & C.E. Act deals with “math”,
which reads as follows:
Section 6: Definitions.–In this Act, unless the context otherwise requires–
….
(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 head-ship over a body
of disciples;
and includes places of religious worship or instruction which are appurtenant to
the institution;
Explanation.–Where the headquarters of a math are outside the State but the
math has properties situated within the State, control shall be exercised over
the math in accordance with the provisions of this Act, in so far as the
properties of the math situated within the State are concerned;”
136. In this connection, learned counsel for the plaintiffs also relied
upon the book “V.K.Varadachari’s Law of Hindu Religious and Charitable
Endowments”, Revised by Dr.R.Prakash, Advocate, Supreme Court, Published by
Eastern Book Company, Lucknow, Fourth Edition 2005, in which, page 466 deals
with Chapter VIII regarding Maths and Mahants, and Clause 2 therein, deals with
“Maths and Temples” and submitted that there is a difference between “Math” and
“Temple” and so, the “Madathipathi” (Head of the Mutt) is only having
administrative powers of the “Mutt” and not the Temple; the Temple and Math are
supplementary to each other; a Temple is practical aspect while a Math is
theoretical part and both have separate objects; in Math, provision for
residence is a must and “Math” has been serving as a School, where the initiated
and lay disciples of some great Teacher are instructed in a certain philosophy
in order to help them lead a healthy, pure and spiritual life. Learned counsel
for the plaintiffs further submitted that the “Madathipathi” has no right to add
or remove any features of the Temple and if he did anything in the features of
the Temple, the same can be questioned by fling a representative suit. For this
submission, he relied upon the decisions reported in Vol.LVI, 1920 Indian Cases
459 (Hari Raghunath Patvardhan Vs. Antaji Bhikaji Patvardhan) and AIR 1958
Orissa 26 (Ramakrushna Vs. Gangadhar) and also relied on various provisions of
Section 116 of the Tamil Nadu H.R. & C.E. Act to the effect that the Government
alone has power to make Rules by Notification to carry out the purposes of the
said Act for preservation of the image of the Temples. He also relied on Rules
31, 37 and 52 of the Management and Preservation of Properties of Religious
Institutions Rules, 1964 and submitted that no one has power to alter the Idol
of Lord Shiva in the Temple, and therefore, he submitted that the
Madathipathi/Jeer/First defendant has no right to remove the Idol of Lord Shiva
from the place where it was originally situated. Admittedly, the Idol of Lord
Shiva is now in “Dhanya Vaasam” (inside the paddy).
137. Learned counsel for the defendants submitted that Section 105(b) of
the Tamil Nadu H.R. & C.E. Act shall not apply to the religious activities of
the Mutt and Section 105(b) specifically provides that the officials cannot
interfere with the religious and spiritual functions of the Head of a Math. He
further submitted that the plaintiffs have not given any evidence in this
aspect.
138. It it true that the plaintiffs have filed the suit simpliciter for
declaration that the removal of Idol of Lord Shiva is null and void and they
have not questioned the rights of the Jeer, whereas, the first defendant-Jeer
himself stated that he has every right to alter the Idols of the Temple, and so,
it is the duty of the first defendant-Jeer to prove the contents in the
additional written statement that, “….defendant as the Head of the Mutt, is in
control and management of the entire Temple, he is the authority to decide the
religious matters and his decision cannot be interfered by anybody….”
139. Learned counsel for the defendants submitted that First defendant
Jeer has administrative powers for management of the Temple/Mutt and that the
Jeer is the hereditary Trustee for administering the Temple and constructing the
Temple or of religious matters, and the Jeer has every right as per the
religious practice to re-instal the Idols of Azhagiya Nambirayar Temple. D.W.4
who is the Manager of the Mutt (Srikariyam of the Mutt) was examined on these
aspects and there was no cross-examination of D.W.4 on the aspect of the powers
of Jeer to remove the Idol of Lord Shiva. Learned counsel for the defendants
further submitted that as per Section 105(b) of the Tamil Nadu H.R. & C.E. Act,
the Jeer has control as the Head of the Mutt and he is having absolute powers in
the administration and management of the Temple/Mutt. Learned counsel for the
defendants further stated that the Rules 31, 37 and 52 of the Management and
Preservation of Properties of Religious Institutions Rules, relied on by the
learned counsel for the plaintiffs, are not applicable to the facts of the
present case on hand.
140. Learned counsel for First defendant-Jeer relied on a judgment of a
Division Bench of this Court reported in Vol.95 LW 502 (His Holiness Sri-la-Sri
Ambalayana Pandarasannathi Avergal Vs. State of Tamil Nadu), which relates to
the powers of the “Madathipathi” in regard to appointment/nomination of the
Junior of His Holiness “Madathipathi”, which is not the question in the case on
hand and hence, this citation is not applicable to the facts of the present
case.
141. Learned counsel for First defendant-Jeer also relied upon the
decision of the Supreme Court reported in AIR 1954 SC 282 (Commr., H.R. E. Vs.
L.T.Swamiar), which deals with the rights and duties of “Mahant”. This decision
is not applicable to the facts of the present case, because the Tamil Nadu H.R.
& C.E. Act came into existence only in 1959 and this decision pertains to the
year 1954. Furthermore, in the present case, then and there, First defendant-
Jeer sought for permission from H.R. & C.E. Department and also requested the
authorities of H.R. & C.E. to be present on the date of “Balalayam”, which is
evidenced by the documents marked on the side of the first defendant-Jeer.
142. Learned counsel for First defendant-Jeer further relied on a judgment
of the Apex Court reported in 2002 (8) SCC 106 (N.Adithayan Vs. Travancore
Devaswom Board), which deals with violation of human rights, which is not the
case here.
143. While considering the arguments advanced by learned counsel on both
sides, it is seen that admittedly, the Temple in question is under the
supervision and control of the Tamil Nadu H.R. & C.E. Department and under the
superintendence of the Joint Commissioner of H.R. & C.E. Furthermore, it is
pertinent to note that after the removal of the Idol of Lord Shiva, the
Government passed a G.O., ratifying the act of the Jeer, which has clearly
proved that the Madathipathi has only administrative control in respect of the
Mutt and not the Temple.
144. Further, the document Ex.B-33 relied on by the learned Senior Counsel
for D7 to D9, has clearly proved that, then and there, on behalf of the Jeer, a
communication was sent to the H.R. & C.E. Department in respect of the
performance of renovation work and “Balalayam” of the Temple, and in Ex.B-33
dated 4.6.2002, the letter addressed by the Manager of the Temple to the H.R. &
C.E. Authorities, in the “Subject” column, it is mentioned about the renovation
of “Sri Swami Azhagiya Nambirayar Thirukoil, Thirukurungudi” and “change of
Sivan Temple” and in paragraph 4 therein, it was mentioned about the Siva
Temple. The Special Commissioner and Commissioner of H.R. & C.E. Department, has
appointed an Expert Committee, as evidenced by Ex.B-34. There is another
communication/Ex.B-35, dated 13.3.2003, sent by Joint Commissioner, H.R.& C.E.,
Tirunelveli, to the Muthiah Sthapathi, Sivachariyar and Bhattachariar, asking
them to inspect the Temple and give their views. Ex.B-36 is the Minutes of the
Meeting of the Expert Committee, dated 31.3.2003 and on the same day, i.e. on
31.3.2003, the plaintiffs and villagers of Thirukurungudi, have sent a
communication (Ex.B-37) to the Assistant Commissioner, H.R. & C.E. Department,
Tirunelveli, objecting to the shifting of Lord Shiva Idol. There is another
representation by the villagers of Thirukurungudi, which is marked as Ex.B-40,
addressed to Commissioner of H.R. & C.E., Tamil Nadu, and in Ex.B-40, the seal
of the H.R. & C.E. Department contains the date 12.5.2003. The Commissioner of
H.R. & C.E. Department, Chennai, has sent a communication-Ex.B-44, to Jeer
Swamigal of Thirukurungudi of Arulmighu Azhagiya Nambirayar Temple, dated
6.8.2004, in which, it is stated that without obtaining prior permission, the
Lord Mahendragirinathar/ Lord Shiva, had been removed and put in “Dhanya Vaasam”
and the Commissioner called for explanation on the said aspect from the first
defendant-Jeer. Ex.B-43 is the communication dated 23.6.2004 addressed by the
Assistant Commissioner of H.R. & C.E., Tirunelveli to the Joint Commissioner of
H.R. & C.E., Tirunelveli and it contains the correspondences relating to
“Balalayam” of Lord Siva Idol; it contains a communication dated 31.5.2004, in
which, it was mentioned on behalf of Jagadguru Sri Sankaracharya Swamigal,
Kancheepuram, that consent was given by His Holiness Sri Acharya Swamigal for
Balalayam and renovation works of Lord Siva and Goddess Ambal Deities. On the
same day, i.e. on 31.5.2004, on behalf of the Jeer Swamigal of Thirukurungudi,
the Manager of the Temple has addressed a letter to Joint Commissioner of H.R. &
C.E. Department, Tirunelveli, seeking for permission for performance of
“Balalayam”, and in the said communication, on behalf of the Jeer, it is stated
that without shifting the Deities, (Kh;j;jp rydkpy;yhky;), they are going to
perform the Balalayam and the relevant portion of the communication dated
31.5.2004 sent on behalf of the Jeer to Joint Commissioner, reads as follows:
“@@mHfpa ek;gpuhah; jpUf;Bfhtpy; $Ph;Bzhjhuzj;jpd; xU gFjpahf rptd; re;epjp
ghyhyak; 2/6/2004y; jpl;lkpl;lgo eilbgw;W tUfpwJ. fhq;rP _ _ $Bae;jpu !;thkpfSk;
xg;g[jy; bjhptpj;Js;shh;fs;. fPHf;;fz;l KyBgu Kh;j;jpfs; ghyhyak;, Kh;j;jp rydk;
ny;yhky; eilbgWfpwJ. 1.kBcwe;jpu fphpehjh; 2.gps;isahh; 3.Rg;ukzpah; 4.ee;jp
5.rz;Bl!;tuh;. MfBt i& jpdj;jpy; fhiy 9-10 kzpf;F Jiw mjpfhhpfs; gpurd;dkhf
nUf;ft[k; ghyhyaj;Jf;F cj;jput[ gpwg;gpf;FkhW[k; gzptd;g[ld; Btz;of;
bfhs;fpBwd;. … “@
145. So, all the communications discussed above, especially the
communication between First defendant-Jeer and the H.R.& C.E. Department,
clearly proved that the H.R. & C.E. Department alone has control over the Temple
and the Jeer is only the hereditary Trustee of the Mutt and is the Madathipathi
of the Mutt pertaining to Arulmighu Azhagiya Nambi Temple. Therefore, the
argument advanced by learned counsel for the defendants that the Jeer has every
right, power and authority to instal and remove the Deities in the Temple, is
unacceptable one.
146. Admittedly, on 2.6.2004, the Jeer Mutt people removed the Idol of
Lord Shiva from the original place and the Lord Shiva Idol is now in “Dhanya
Vaasam” (kept inside paddy). This has clearly proved that the first defendant-
Jeer acted against his earlier statement.
147. In this regard, it is worthwhile to refer Rules 31, 37 and 52 of the
Management and Preservation of Properties of Religious Institutions Rules, which
are extracted hereunder:
“The Management and Preservation of Properties of Religious Institutions Rules,
1964:
Rule 31: Repairs, alterations, etc., to Antiquities: (1) A trustee or the
Board of Trustees as the case may be, shall not repair, alter, replace, sell,
gift away or destroy any antiquities or other objects of interest such a
sculptures, carvings, inscriptions or paintings, without the written permission
of the Commissioner and such permission shall be granted only on obtaining
competent advice thereon.
(2) While granting permission under Sub-rule (1) the Commissioner shall
issue such instructions to the Trustee or the Board of Trustees, as may be
necessary, for preservation of works of art, sculpture paintings, antiquities
and other articles of interest and the trustees shall be bound to carry out such
instructions.
Rule 37: Care of structures: It shall be the duty of the trustee or the
Board of Trustees to ensure the utmost care is taken of the architectural,
sculptural and archaeological features of every structure in the temple or on
its lands in his or its charge.
Rule 52: Alterations to or melting of idols : No trustee or the Board of
Trustees shall alter the character of, or repair, remove, melt, or replace any
metallic or other idol or image in the temple, whether fixed or otherwise,
without the express permission of the Commissioner in writing.”
148. As per Rule 52 of the Management and Preservation of Properties of
Religious Institutions Rules, 1964, the Jeer has no power to remove the Lord
Shiva Idol from the original place of installation. Hence, I am of the view that
the first appellate Court committed error in coming to the conclusion that First
defendant-Jeer has every right to alter, change, etc., of the Idols and the
Vimanam (Gopuram), which is against the “Agama Saastras”. The substantial
question of law (v) is answered accordingly.
149. Substantial question of law (iii):
Whether the lower appellate Court is right in holding that as per
G.O.(Ms).No.55, dated 8.4.2005, the H.R. & C.E. Department, has ratified the
shifting of the Idol of Lord Shiva, when especially the Division Bench of this
Court has directed the lower Court to decide the suit, without reference to
G.O.(Ms).No.55, dated 8.4.2005 ?
Since the Idol of Lord Shiva was removed and kept in “Dhanya Vaasam” (kept
inside paddy), immediately, the plaintiffs and villagers of Thirukurungudi sent
representation(s) to the Government, in pursuance of which, explanation has been
called for from the Jeer by the Tamil Nadu H.R. & C.E. Department. The suit has
been filed on 1.7.2004 by the plaintiffs. Only during the pendency of the suit,
G.O.(Ms).No.55, Tamil Development, Culture and Religious Endowments Department,
dated 8.4.2005, which is marked as Ex.B-45, has been passed. In the said G.O.
itself, it is specifically stated that the suit is pending before the District
Munsif Court and challenging the interim order passed in the suit, the Jeer has
preferred a Civil Revision Petition (Madurai Bench) before this Court, and in
the meantime, Hindu Bhaktha Jana Sabai and Divya Desa Parambariya Padukappu
Peravari, preferred Writ Petitions and as seen from the said G.O., the belated
permission sought for shifting has been accorded by ratifying the act.
Admittedly, the validity of the said G.O. has been under challenge in
W.P.No.18450 of 2005 before this Court. At this juncture, it is appropriate to
incorporate the order passed by this Court while disposing of W.P.No.18450 of
2005 along with the other connected cases, on 3.10.2005:
“5. …. …. The last of the writ petition is W.P.No.18450/2005. The
writ petitioner in that writ petition challenges the validity of G.O.Ms.No.55
TDC RE Department dated 08.04.2005. Under this Government Order, the Government
ratified the action of the temple authorities in shifting the shrine of Lord
Siva from Arulmigu Nambirayar Temple at Thirukurungudi to a new shrine. This
ratification is stated to be under Rule 52 of the Management and Preservation of
Properties of Religious Institutions Rules framed under section 116 of the Hindu
Religious and Charitable Endowments Act. Of course, as rightly contended by the
plaintiffs in the suit, the validity of the above referred to Government Order
cannot be challenged in that suit. In our considered opinion, the decision in
the pending suit may have a bearing on the validity of the Government Order
challenged in this writ petition. In other words, if the civil court, on
evidence, holds that shifting the idol of Lord Siva from it’s original place to
the new place is not in violation of either Agama Sasthras or any known
religious principle or faith, then it cannot be said that such a finding may
have no bearing at all in deciding the validity of the Government Order.
Therefore, we are not taking up W.P.No.18450/2005 for disposal and instead,
direct the Registry to post it before court after O.S.No.288/2004 pending on the
file of the learned District Munsif, Nanguneri is disposed of.”
150. So, the challenge to the said G.O. is pending before this Court in
W.P.No.18450 of 2005. In the said order dated 3.10.2005, the Division Bench of
this Court has specifically mentioned that, “Therefore, we are not taking up
W.P.No.18450/2005 for disposal and instead, direct the Registry to post it
before court after O.S.No.288/2004 pending on the file of the learned District
Munsif, Nanguneri is disposed of.” In such circumstances, the first appellate
Court has considered the G.O. and came to the conclusion that the H.R. & C.E.
Department has ratified the act of shifting the Shrine of Lord Shiva from the
original place to the new place, and the first appellate Court, in paragraphs 60
and 61 of its judgment, came to the conclusion that as per Rule 52 of the
Management and Preservation of Properties of Religious Institutions Rules, the
G.O. had been passed, giving permission for re-installing the Shrine of Lord
Shiva into the new constructed place of the “Third Prakaram of the Temple” as
per the decision of the Expert Committee of the Tamil Nadu H.R. & C.E.
Department and the permission was accorded in the said G.O. only after the
removal of the Shrine. Hence, the first appellate Court committed error in
coming to the said conclusion, relying on the said G.O. while disposing of the
First Appeals, when admittedly, the challenge to the said G.O. is pending before
this Court. Substantial question of law (iii) is answered accordingly.
151. Substantial question of law (viii) :
Whether the lower appellate Court is right in rendering the judgment
without disposing of the applications filed under Order 1 Rule 8(5) of CPC and
Order 1 Rule 10(2) of CPC ?
Learned counsel for the plaintiffs submitted that when the impleading
petitions are pending before the first appellate Court, it is not proper on the
part of the first appellate Court to hastily dispose of the First Appeals
simultaneously along with those impleading petitions, and it has not considered
the impleading petitions in proper perspective, when admittedly, the suit is
filed in a representative capacity. In such circumstances, it is the duty of the
first appellate Court to consider those interlocutory applications for
impleadment, in its own merits and only after giving a detailed order, the First
Appeals should have been heard for arguments and disposed of subsequently.
152. Admittedly, the impleading applications were disposed of
simultaneously on the same day the First Appeals were disposed of. The first
appellate Court did not consider those impleading applications in proper
perspective and it will have a bearing on the disposal of the First Appeals, as
the suit has already been filed in a representative capacity and impleading of
those parties is necessary or not, has to be decided and finding has to be
rendered separately on the said applications and then only, the First Appeals
should have been heard and disposed of. Hence, I am of the view that the first
appellate Court committed error in disposing of the impleading applications
along with the First Appeals. Substantial question of law (viii) is answered
accordingly.
153. Substantial question of law (x):
Whether the lower appellate Court is right in rendering the judgment, when
Tr.O.P.Nos.148 and 149 of 2009 were filed and pending on the file of the
Principal District Judge, Tirunelveli, wherein serious allegations were made
against the learned Sub-Judge, Valliyoor, who disposed of the appeals ?
Learned counsel for the plaintiffs submitted that while Tr.O.Ps. were
filed and pending, making serious allegations against the Judicial Officer
concerned, the Judicial Officer concerned has hastily disposed of the First
Appeals and hence, he prayed for setting aside the judgment and decree of the
first appellate Court. The pendency of the Tr.O.Ps. will have no bearing on the
disposal of the First Appeals, since there is no evidence to show that the
plaintiffs have obtained any order of interim stay of disposal of the First
Appeals. Hence, I am of the view that the question as to whether the learned
Subordinate Judge, Valliyoor is right in rendering the judgment, when the said
Tr.O.Ps. are pending, is not a substantial question of law to be considered and
hence, this Court is not answering this substantial question of law.
154. One more aspect to be noted is that during the pendency of
S.A.(MD).Nos.1075 of 2009 and 176 and 646 of 2010, one Valli Manalan and
Vadivazhagiya Nambi, filed an application seeking for leave to file Second
Appeal in S.A.S.R.(MD).No.16491 of 2010. These two petitioners earlier filed
I.A.No.130 of 2009 in A.S.No.29 of 2007, I.A.No.133 of 2009 in A.S.No.37 of 2007
and I.A.No.136 of 2009 in A.S.No.63 of 2007 before the lower appellate Court to
substitute their names in the name of the plaintiffs. After contest, the said
I.As. were dismissed. The Second Appeal has been preferred by the plaintiff(s)
on 24.11.2009 in S.A.(MD).No.1075 of 2009. But the petition to leave to appeal
in S.A.S.R.(MD).No.16491 of 2010, was filed only on 12.4.2010, as the said
applications in I.As. seeking to substitute their names in the place of the
plaintiffs, were dismissed by the first appellate Court. Only during the course
of arguments in S.A.(MD).Nos.1075 of 2009 and 176 and 646 of 2010, the
appellants in S.A.S.R.(MD).No.16491 of 2010 appeared through counsel on 3.9.2010
which was the last date of hearing the Second Appeals, and their counsel filed
the written arguments only on that day. Furthermore, in the said three Second
Appeals, the appellants/plaintiff(s)/defendant(s) in the respective cases,
engaged counsel(s) and argued the cases elaborately. The interest of the
petitioner/appellant in S.A.S.R.(MD).No.16491 of 2010, is protected by the
appellants in the other three Second Appeals. In such circumstances, there is no
reason to allow the petition seeking leave to appeal in S.A.S.R.(MD).No.16491 of
2010, which is accordingly rejected. Consequently, S.A.S.R.(MD).No.16491 of 2010
is also rejected.
155. In view of the answers given above to the substantial questions of
law:
(i) The plaintiffs have locus-standi to file the suit in a representative
capacity;
(ii) D2 and D3/H.R. & C.E. authorities sought for explanation from the
first defendant-Jeer regarding the removal of the Idol of Lord Shiva from the
place, which is admittedly now kept in “Dhanya Vaasam” (inside paddy). This
shows that the first defendant-Jeer has no authority to remove the Idol of Lord
Shiva from the place where it was originally situated;
(iii) the Government have also passed the G.O. ratifying the said action
of the Jeer, when admittedly, as on today, the challenge to the said G.O. is
pending before this Court in W.P.No.18450 of 2005
156. The judgment and decree of the first appellate Court are liable to be
set aside and that of the trial Court are to be restored. Therefore, the
plaintiffs are entitled to get the declaration that the demolition, removal and
re-location of the Lord Shiva/Mahendragirinathar Sannadhi situated on the north-
east of Sancum Sanctorum of the Temple and in front of the Shrine Veetrirundha
Nambi, to a different place, within the premises of Arulmighu Azhagiya
Nambirayar Temple, Thirukurungudi, is illegal and invalid. Accordingly, the
declaration sought for by the plaintiffs, is granted. There will be a direction
to defendants 1 to 4 to restore the Lord Shiva Sannadhi, namely Arulmighu Sri
Mahendragirinathar, to the original place from where it was removed, within
three months from today.
157. For the foregoing reasonings:
(a) The Second Appeal filed the plaintiffs in S.A.(MD).No.1075 of 2009 is
allowed.
(b) The Second Appeal filed by D5, in S.A.(MD).No.176 of 2010, is also
allowed.
(c) The Second Appeal filed by D6, in S.A.(MD).No.646 of 2010, is also
allowed.
(d) The Second Appeal in S.A.S.R.(MD).No.16491 of 2010, filed by the
proposed parties who sought for impleadment before the first appellate Court
during the pendency of First Appeals, and leave to sue in M.P.(MD).No.1 of 2010
in S.A.SR.(MD).No.16491 of 2010, are rejected.
(e) The judgment and decree of the first appellate Court are set aside and
that of the trial Court are restored.
(f) The suit in O.S.No.288 of 2004 is decreed as prayed for.
(g) There will be a declaration that the demolition, removal and re-
location of the Lord Shiva/Mahendragirinathar Sannadhi situated on the north-
east of Sancum Sanctorum of the Temple and in front of the Shrine Veetrirundha
Nambi, to a different place, within the premises of Arulmighu Azhagiya
Nambirayar Temple, Thirukurungudi, is illegal and invalid.
(h) Three months’ time is granted to the defendants to re-instal the Lord
Shiva Idol to its original place in Thirukkurungudi Azhagiya Nambirayar Temple.
(i) No costs.
(j) The Miscellaneous Petitions are closed.
cs
To
1. Additional District Munsif, Nanguneri.
2. Subordinate Judge, Valliyoor.
3. Thirukurungudi Jeeyar Mutt,
through its Jeeyer Swamigal,
Thirukurungudi, Nanguneri Taluk.
4. The Deputy Commissioner,
H.R. & C.E., Nungambakkam, Chennai.
5. The Joint Commissioner,
H.R. & C.E., Tirunelveli,
Thiruvanandapuram Road,
Palayamkottai, Tirunelveli.
6. The State of Tamil Nadu,
through its District Collector,
Kokkirakulam, Tirunelveli-9.
7. The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
