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Madras High Court
Panchapagesa Gurukkal vs Sinna Sevugam Chettiar And Ors. on 30 January, 1928
Equivalent citations: AIR 1929 Mad 118


1. Of considerable importance and interest is the main question for consideration in this second appeal. The plaintiffs who are the appellants before us are the hereditary gurukkals or official worshippers of the deity in the temple of Sri Dharmambai at Tiruvadi. For the purpose of the discussion of the question raised it is sufficient to indicate the respondents who represent the defence as the managing authority of the institution represented by the dharmakartha, the deceased defendant 1, and those deriving authority from him.

2. The object of the action may be briefly stated to be to prevent the demolition of the old shrine and the construction of a new one in its place pursuant to arrangements entered into with regard thereto by the dharmakartha with defendant 3 a gentleman of the Nattukottai Chetty caste apparently of considerable wealth and resources.

3. There is apparently no question in the case of the funds of the temple being utilized for the purposes of the proposed renovation. There have always no doubt been two opinions with regard to all such renovations of old temples, one school being strongly against the demolition of old structures and the other being in favour of renovation even on modern lines. We have, however, nothing whatever to do with any such opinions. The case has come up before us only to be adjudicated on the legal rights and wrongs, having; regard to what has been alleged and proved and found by the lower Court.

4. Before beginning, however, the discussion of the main question it may be convenient to dispose of what can only be regarded as a point arising in limine. This question relates to the competency of the plaintiffs to maintain such suits. The objection may be stated in two ways: firstly, that the plaintiffs as gurukkals can only claim to be the holders of the hereditary office of performing the worship in the temple and could have no-right to maintain a civil action unless what is alleged constitutes any infringement of their rights as office-holders or involves any withholding of the perquisites they are entitled to; and secondly,, that the plaintiffs as mere ordinary worshippers could not by themselves and without constituting themselves as representative of the entire body maintain a suit for any such relief.

5. The solution of this question is not by any means easy. We feel we should have experienced a great deal of doubt and difficulty in coming to a conclusion with regard to it, if a decision should have been- necessary for the disposal of the case. While on the one hand the plaintiffs as hereditary gurukkals might have a cause of action if the demolition and renovation of the temple should be found to involve a substantial and wrongful interference with the rights of their office, it is at the same time difficult to imagine how they can claim to interfere with every act of management by the trustee which relates in and manner to the idol on the mere ground that the right of worshipping the idol is theirs and that the act contemplated will offend against the ritualistic rules or their own notions of propriety. Again if it should be claimed that every ordinary worshipper at a temple has a right to prevent the trustee from doing any act which is alleged to be against such ritualistic rules or notions of propriety, one cannot regard with complacency the possibility of a trustee in that position being molested continuously by hundreds of such suits at the instance of numerous individual worshippers. But in the view, however, we have taken on the main point in the appeal, it has become unnecessary to express any view with regard to the preliminary question of the plaintiffs’ rights.

6. The main question raised and discussed before us may be stated thus: Have the dharmakarthas of a Hindu temple the right to demolish the old shrine and put up a new structure albeit a much better and improved one, unless the old shrine had actually crumbled to ruins and it has become practically impossible to restore the shrine to a fairly satisfactory condition by mere repairing and patching up? The question so set out may appear to be stated in a somewhat extreme manner. But we have no, doubt whatever that the contention strenuously made before us was undoubtedly that, not only in substance but almost in terms. We may, however, to begin with, observe with some satisfaction that no similar extreme contention was attempted to be advanced on the part of the dharmakartha. It was not claimed that the dharmakartha had in such matters an uncontrolled and absolute discretion to pull down the old temple and erect another in its place as he may think fit provided of course the funds of the temple were not drawn for any such purpose. We feel there might be considerable difficulty in recognizing any such claim of absolute discretion. The question has thus been narrowed down to a very limited ambit.

7. The question that ultimately emerged was only in the form, whether the present shrine was so dilapidated as to justify the dharmakartha in setting about an entire renovation? This would, no doubt, on the face of it, be regarded merely as a pure question of fact, and so it is to a very large extent.

8. On that question the learned District Munsif apparently came to a conclusion in the negative. On appeal by the defendants, the learned Subordinate Judge in the lower appellate Court came to an entirely different conclusion. The difference in the conclusion arrived at by the two lower tribunals turns out on examination to be, not on a difference really with regard to any actual state of things, but only with reference to the extent of dilapidation which would justify a complete renovation. It is for this purpose that in both the lower Courts the presiding Judges have launched on a long and learned examination of the agamas and texts bearing on the point. It would seem to be a fortunate circumstance that the case should, in both the Courts, have come up for hearing before such good Sanskrit scholars as the particular District Munsif and the particular Subordinate Judge, But their very scholarship, having regard to the standpoint respectively adopted, would seem to have tended largely to a confusion of the main points to be considered. Whereas the learned District Munsif approached the consideration of the question and the interpretation of the text from the strictly orthodox point of view, the learned Subordinate Judge has examined the text and considered the question more from the engineering point of view.

9. It must be observed, to begin with, that though both sides agreed to certain agamas such as Uttara Kamika Agama and Poorva Kamika Agama and such works as Jeernodhdhara Dasakams being binding with regard to the questions at issue, still it is by no means clear to us that all the rules and directions contained in one or the other of them should be regarded as mandatory and binding. While recognizing to full the circumstance that such books deal with what may be called sacredotal architecture and that, therefore, they cannot be regarded merely as general treatises on architecture, still it is impossible to agree to the Suggestion that all the rules without exception are equally ‘binding and that no attempt is possible or proper to differentiate between the rules and directions that must be regarded as mandatory and those that may be regarded merely as directory,

10. We shall deal later on with the arguments based on the texts. But before doing so, it is clearly necessary to point out that the contention cannot be accepted that every one of the rules should be regarded as mandatory and absolutely binding. For instance, our attention has been drawn to a rule that, when a structure crumbles down, it should be re-built with material only of the same or of some higher quality. Supposing that a garba-graha or the inner shrine had been built of superior polished granite and that the same had in course of time been reduced to ruins and the funds and resources at the command of the temple authorities should be insufficient to rebuild the shrine with the same kind of material, then apparently it should be concluded that it is more meritorious to leave the shrine in ruins rather than to rebuild it in brick and mortar. Such could not possibly have been the intention of the rule. Such a rule for example must clearly be held to be merely directory and not mandatory. No attempt has been made in this case by either party to differentiate or classify the rules on any such basis.

11. The contention more strenuously pressed on us on behalf of the appellants was that there was a rule which was mandatory because of the terrible penalties threatened in the event of breach, that no temple should be renovated or entirely rebuilt unless it has actually crumbled down so as to render any mere repairing of it out of the question. We shall, as already indicated, examine the basis of this contention from the point of view of the texts in the sequel. But for the present stage of the discussion, assuming the rule to be mandatory and to be what it has been contended to lay down, the question arises, who is the person that is ultimately to decide under any given circumstances whether the condition of the temple structure is such as to be properly described as jeerna or dilapidated or capable of being restored by patching up and repair? In other words, what is the authority entitled to determine the exact stage of dilapidation of the building which would justify a rebuilding or renovation?

12. If we understood the contention of the appellants in this matter correctly, it must be held that if and when the question is raised, it is the Court that must decide the matter. As the Court cannot do it all itself, it must naturally rely upon expert evidence and it is needless to observe what in such circumstances the expert evidence is likely to be or prove.

13. It is also difficult to see why, if ultimately the question is one to be determined bona fide, it is necessary that such power of determination should be taken away from the managing authorities of the temple and vested in a Court. It is no doubt possible that there may be a grossly mala fide or improper exercise of discretion. But if it should be conceded as it has been in this case, that there has been no lack of good faith in the exercise of discretion by the dharmakartha or the trustee in deciding on entire renovation, there seems to be no legal principle enabling the Court to review this discretion of the dharmakartha. No doubt, if out of any improper motives the dharmakartha should seek to pull down an existing sacred shrine for the purpose of building a new One and if the case on an examination should turn out not a case of any bona fide exercise of discretion at all, then it may be that the Court can-interfere. But no such case has been laid in this case and no such charge has been made. In fact, Mr. T. M. Krishna-swami Aiyar, the learned vakil for the appellants conceded that the defendants were really prompted by the best motives and intentions.

14. We are not satisfied in this case that having regard to all the circumstances, that it was not a proper case for the exercise of the discretion by the dharmakartha or that the exercise of discretion by him was so erroneous or vitiated as to justify the interference of the Court.

15. Nextly assuming that the Court can, at any rate, in proper cases interfere with the decision of the dharmakartha, what are the facts? The learned Subordinate Judge referring to the suit temple which he personally inspected states that it is in a state of disrepair and decrepitude and dilapidation in many respects. He then proceeds to enumerate and describe the various items of dilapidation. Apart altogether from the illiterative language employed by the learned Subordinate Judge, it may be observed that, on inspection by himself of the shrine, he came to the conclusion that the discretion exercised by the Pandara Sannidhi, the dharmakartha, was proper. We see no grounds at all for supposing that such discretion was so grossly erroneous or vitiated as to justify our interference. After all, it should not be overlooked that the question of the degree of dilapidation of a building is only a question of fact. But even on the merits of the main contention we are not satisfied that the appellants have made out a case. It has been conceded on behalf of the appellants with reference to some Sanskrit texts quoted that if a building has become what is called jeerna, it may be pulled down and rebuilt. Mr. T. M. Krishnaswami Aiyar for the appellants contended that the expression “jeerna” should be construed as meaning reduced to ruins. It is impossible to accede to any such contention.

16. The essence of a building is its structural coherence and consistency and a building must be said to have attained the condition of “jeerna” when time has seriously impaired such coherence and consistency. The word “dilapidated” would seem almost accurately to render the correct significance. Having regard to the evidence in the case, which it is unnecessary for us here and now to recapitulate and the findings recorded by the learned Subordinate Judge in the lower appellate Court we must hold that the building is sufficiently dilapidated as to justify reconstruction.

17. Again another set of expression which was much canvassed consisted the words ‘ekanga vyakalyam” and “sarvanga vy-kalyam.” It was argued that when the state of the building could properly be described as only that of ekanga vy-kalyam, only repairs should be executed and when it was suffering from sarvanga vykalyam, it may be pulled down and renovated. The. expression “sarvanga vykalyam” having regard to the texts, should be translated only as not partial but general dilapidation and that is what has been established on the evidence and found by the lower appellate Court. It is unnecessary to refer to or discuss the various other texts that were cited and with regard to the interpretation of which various theories were put forward. In the result we are not “satisfied that the decision arrived at by the learned Subordinate Judge in the Court below was wrong. The second appeal having thus failed is dismissed with costs of respondents 1 and 10 inclusive of costs of private printing to be certified by the vakil for respondents.

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