Sri Thulukka Choodamani Mariamman Temple v. Subramania Pandaram

1. The 5th defendant in O.S 112 of 1979, on the file of the Court of the District Munsif, Rasipuram is the appellant before me. It appears the suit was filed originally in the court of the District Munsif, Namakkal as O.S 167 of 1977.

2. Two questions are raised before me by the counsel on both sides as arising out of the judgments and decrees of the courts below. They are (1) Whether the plaintiffs in O.S 112 of 1979 are entitled to appropriate the coconut bunches and the plantain bunches offered by the worshippers during annual festival in the month of Panguni to the deity of the suit temple, and (2) whether the suit is barred under S. 108 of the Hindu Religious and Charitable Endowments Act. 1959.

3. The suit temple is Sri Thulukka Choodamani Amman, an ancient temple at Pudupatti village, Rasipuram Taluk. The plaintiffs, four in number, representing the hereditary poojaries of the said suit temple sued the defendants for declaration that they are entitled to receive the tender coconuts and plantain fruits offered to the temple by the worshipping public at the time of annual festival in the month of Panguni and to restrain the defendants 1 to 5 from in any way interfering with the peaceful possession and enjoyment of that right.

4. It is the case of the plaintiffs that the Poojaries of the temple are not paid any salaries or ‘Paditharam’. The suit temple itself has no income apart from the voluntary contributions given by the worshippers. There used to be celebrated from time immemorial an annual festival for 8 days beginning from Sunday immediately prior to the last Wednesday of Panguni month every year. During such annual festival, people from several nearby villages congregate and used to offer several things to the plaintiffs like tender coconuts and plantain fruits in bunches, as a token of their respect to them. The plaintiffs and their predecessors-in-title used to accept such offerings and share the money value of such offerings by selling the same. This practice was there from time immemorial and the defendants 1 to 3 who are the hereditary trustees, with the help of the Executive Officer, the 5th defendant, for the first time, interfered with such practice and leased out the right to collect the offerings in the year 1977. Hence the present suit.

5. Defendants 1 to 3 have filed a common written statement adopted by defendants 4 and 5. It is the case of the defendants that the offerings by the worshippers during the annual festival were not to the Poojaries, but to the temple/deity and, therefore, the plaintiffs cannot claim right to appropriate them. The defendants do not admit the claim of the plaintiffs that from time immemorial, the Poojaries of the temple used to appropriate such offerings themselves. They have also contended that the suit itself is not maintainable, in view of S. 108 of the Hindu Religious and Charitable Endowments Act.

6. The plaintiffs have examined, to substantiate their case, six witnesses of whom P.W 1 is the 4th plaintiff. The other five witnesses of the plaintiffs are independent witnesses drawn from cross-section of the society. The defendants have examined in all four witnesses of whom D.W 1 is the 5th defendant and D.W 2 is the 1st defendant. In addition to them, two more witnesses were examined. Both the parties have filed documents also to support their respective stand.

7. The trial court, on a consideration of the case, disbelieving the evidence of the plaintiff's witnesses and consequently believing the evidence of the D.Ws held that the plaintiffs are not entitled to the offerings of the worshippers at the time of annual festival in the shape of tender coconut bunches and plantain bunches. The learned District Munsif also held that the temple alone is entitled to these offerings. On the question of maintainability of the suit, agreeing with the contention raised on behalf of the defendants, the learned District Munsif held that the suit is barred under S. 108 of the Act. In the result, the suit was dismissed by the trial court.

8. Aggrieved by the dismissal of the suit, the plaintiffs preferred A.S 45 of 1980 which was heard and disposed of by the learned Subordinate Judge of Namakkal. The learned Subordinate Judge, on a reappreciation of the oral evidence, came to a different conclusion, and expressly held that the learned District Munsif was in error in believing the oral evidence of D.Ws in preference to the oral evidence of P.Ws The learned Subordinate Judge has given ample reasons for taking such a view. The learned Subordinate Judge also has held that the dispute raised in the suit will not come within the purview of S. 63 (e) of the Act and therefore, the suit is not barred under S. 108 of the Act. Consequent to these findings, the lower appellate Court allowed the appeal and decreed the suit.

9. As stated earlier, this second appeal is filed by the 5th defendant alone.

10. Mr. T.L Ram Mohan, learned counsel for the appellant contended that the lower appellate court erred in reversing the findings of the trial court by accepting the evidence of the plaintiff's witnesses in preference to the evidence of the defendants' witnesses. The reasons given by the lower appellate court for such preference are unsustainable. In any event, according to the learned counsel, the dispute in the suit will definitely come within the scope of S. 63 (e) of the Act and, therefore, the suit is barred under S. 108 of the Act.

11. Mr. M. Srinivasan, learned counsel appearing for the plaintiffs' respondents 1 to 4, contending contra, submitted that this Court sitting in second appeal, will have no jurisdiction to reappreciate the evidence once over as it is the prerogative of the first appellate court to reappreciate such oral evidence. It cannot be contended that the reasons given by the lower appellate court for reversing the findings of the trial court are in any way perverse. Therefore, this Court may not interfere with the findings of the lower appellate court on facts. On the question of the maintainability of the suit, it is the contention of the learned counsel for the plaintiffs that the dispute will not come within any one of the categories contemplated in S. 63 (e) of the Act and, therefore, S. 108 of the Act is not a bar, and the lower appellate court has rightly held that the suit is not barred.

12. On the first question whether the Poojaries plaintiffs are entitled to appropriate the coconut bunches and plantain bunches offered by the worshippers during festival time in the month of Panguni to the deity of the suit temple, I am of the view that this being a dead question of fact, the lower appellate court having come to the conclusion fully believing the oral evidence of the P.Ws that from time immemorial the practice was that the Poojaries used to appropriate the offerings of the worshippers, it is not open to me to lightly interfere with the finding of the lower appellate court given on facts, particularly when there is nothing to show that the appreciation of evidence by the lower appellate court is in any way perverse. I also concur with the reasonings of the lower appellate court for differing from the trial Court in believing the evidence of the P.Ws in preference to the evidence of the D.Ws I, therefore, find this point in favour of the plaintiffs.

13. The other question to be decided is, whether the suit is barred under S. 108 of the Act. Ss. 63(e) and 103 of the H.R & C.E Act are extracted below:

“63. Subject to the rights of suit or appeal hereinafter provided, the Deputy Commissioner shall have power to inquire into and decide the following disputes and matters:—

(a) to (d) … … … …

(e) whether any person is entitled, by custom, or otherwise to any honour, emolument or perquisite in any religious institution; and what the established usage of a religious institution is in regard to any other matter.”

“108. No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Courts of Law, except under, and in conformity with the provisions of this Act.”

14. The contention of Mr. M. Srinivasan is that a dispute, to come within the purview of S. 63(e), must be one where the plaintiffs must be any one or more of the matters referred to in S. 63(e) in a position to demand from the hereditary trustees and/or Executive Officer. Here, the offerings by the worshippers are voluntary in nature and no one has any right to compel the worshippers to offer the same. In that context, S, 63(e) cannot be invoked. It appears that the offerings at the annual festival by the worshippers are in token of their gratitude and reverence to Goddess for giving them a good harvest and for such kindness, they appease the Goddess by tendering coconuts and plantains in bunches. They also pray for continuance of the benevolence in the years to come. At that time the Poojaries invoke the mercy of the deity and pray for the well-being of the devotees. It may be noted that apart from the daily routine Poojas, this annual festival is a special one. In this context, the learned counsel for the plaintiffs cited a Bench decision of this Court in Tirumalai Tirupathi Devasthanams v. Seshachalam Diskshitulu . 1948 II M.L.J Short Notes page 47.. The learned Judges have held as follows:—

“when the temple authorities collect a particular fee for the performance of an archana for individual worshippers, they are as it were collecting on behalf of the archakas and other servants who perform the necessary functions in this matter, the remuneration due to them. Such archakas are entitled to demand an account of that part of the ticket fees which may be said to represent their remuneration for the services performed by them. No question of master and servant and the duty of a servant to do a little extra amount of work in the usual course of things without a corresponding right to increaeed wages arises. As performance of archanas for individual worshippers by archaaks lies outside the scope of the ritual of the archana which is to be performed by the archakas, they are not precluded from making a claim for part of the amount collected as ticket fees by the committee.”

The learned counsel also cited a judgment of the Supreme Court in Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi . 1967 1 S.C.R 280 to hold that the suit is maintainable. In that Judgment, the learned Judges while considering S. 93 of the old Act, namely, the Madras Hindu Religious and Charitable Endowments Act (19 of 1951) held:

“Under S. 9 of the Code of Civil Procedure, the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust the jurisdiction of an ordinary civil court shall establish the right to do so. S. 93 of the Act does not impose a total bar on the maintainability of a suit in a civil court. It states that a suit of the nature mentioned therein can be instituted only in conformity with the provisions of the Act, that is to say, a suit or other legal proceeding in respect of matters not covered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters? They are: (1) administration or management of religious institutions; and (2) any other matter or dispute for determining or deciding which provision, is made in the Act. The clause “determining or deciding which a provision is made in this Act”, on a reasonable construction, cannot be made to qualify “the administration or management” but must be confined only to any other matter or dispute. Even so, the expression “administration or management” cannot be construed widely so as to take in any matter however remotely connected with the administration or management. The limitation on the said words is found in the phrase “except under in conformity with the provisions of this Act.” To state it differently, the said phrase does not impose a total bar on a suit in a civil court but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other construction would lead to an incongruity, namely, there will be a vacuum in many areas not covered by the Act and the general remedies would be displaced without replacing them by new remedies.”

The scope of S. 108 was considered by Padmanabhan, J. in Vallaba Ganesar Devasthanam v. Anandavadivelu. The learned Judge observed as follows:—

“The principle on which the jurisdiction of the civil Court is excluded under S. 108 of the Act are now well-settled. If the dispute raised in the suit relates to the administration or management of a religious institution or any other matter for the determination of which a provision has been made in the Act the bar under S. 108 of the Act will be attracted. On the other hand if the question arising for adjudication falls outside the scope and ambit of S. 108 of the Act, then the civil Court will have jurisdiction to entertain the suit and the bar of exclusion of jurisdiction provided for under S. 108 cannot be invoked.

[Para 11]

It is equally settled that if in a suit any matter in respect of which a provision is made under the Act had to be incidentally decided, the jurisdiction of the civil Court will not be excluded. To be more specific if any other question, in respect of which the power is conferred on the Deputy Commissioner to decide under S. 63 of the Act, arises incidentally for consideration in a suit, the jurisdiction of the civil Court will not be excluded. Notwithstanding S. 108 of the Act, where the dispute relating to a temple is only between two private parties and the Board is not directly concerned, the civil Court has jurisdiction to try the suit.”

[Para 12]

In Mukku v. Venkata Rao, P.N Ramaswami, J. has held thus:—

“It is well settled that no suit will lie for recovery of gratuity or voluntary offerings or for damages against any person failing to make an offering where there was no obligation to make it.”

A perusal of these decisions would indicate that the dispute that has been raised in this case by the plaintiffs will not come within the purview of S. 63 (e) of the Act. The trial Court took the view that the offerings amount to perquisites. The lower appellate court differed from the view taken by the trial Court and held that the offerings cannot be treated as perquisites of the office of the Poojariship. The lower appellate court relied on a decision in Kunj Behari Lal v. Musammat Naraini And Others,3

15. In my view, the offerings being in the nature of appeasing the Goddess through the medium of Poojari, and that too on a special occasion, that being not a daily and routine matter, the Poojaries are entitled to appropriate the offerings, and this matter in the light of the views expressed by this Court in Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddi . 1948 2 M.L.J S.N 47. and Mukku v. Venkata Reddy will not come within the purview of S. 63 (e) of the Act. Once I come to the conclusion that the dispute raised in this case will not come within the purview of S. 63 (e) of the Act which section alone is relied on by the learned counsel for the appellant, there is no difficulty in holding that S. 108 is not a bar to the maintainability of the suit. I, therefore, hold that the lower appellate court is right in holding that the suit is not barred under S. 108 of the Act.

16. In the result, the second appeal fails and the same is dismissed with costs.

VCS.