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The observations of the learned Judge, though obiter, deserve to be quoted not only because of his vast experience in matters of Hindu religion but also because of his well known reformative zeal to remove the cobwebs that shroded the Hindu religion by superstitious ignorance and perverted imposition. Ratio |
The learned Judge says: ". . the next question of law is whether such honours to be shown in the presence of God can be legally attached to the office as emoluments, in other words, can honours be legally claimed by anybody as receivable by him in a temple? When a trustee chooses to parade the temple elephants and danc... |
Such persons to whom respect is shown cannot in my opinion claim such 'honours ' as a legal right, but as a favour shown by the temple Deity. PRE |
Such honours in the strict eye of the Shastras cannot be called honours at all but as doles condescendingly given by the temple Deity as a 'favour '. PRE |
One of the honours, as is well known, shown to a, Hindu in a Vaishnava temple is to place the impression of the feet of the Deity upon the head or shoulders of the devotee. PRE |
Another is the distribution of the 'leavings ' of the food offered to the Deity to the distinguished devotee. PRE |
The sandal paste of the feet of the Deity and the leaving of his food and the garland worn by the God are given as marks of pure grace and not as rights and hoilours claimable by the devotee. . PRE |
This clearly shows that while we ought to humbly accept the Deity 's leavings given through the trustee or an archaka, a claim for 'honour ' to be shown in the presence of God is a sinful claim and is illegal and unshastraic. PRE |
I would therefore respectfully confine the decision in Sri Bungachariar vs Bungaswami Buttachar(1) to cases in which the receiving of the first theertham by an office holder has become indissoluble part of the ritual to b e performed by the recipient as an office holder and the extension of the principle should be care... |
These are weighty observations and if they were appropriate in the year 1913 they should be much more so in the year 1961." PRE |
We respectfully accept these observations as laying down the correct proposition, namely, that a party claiming an honour like first theertham, etc., has to prove not only that he is an office holder of the temple and that he has been receiving the first theertham in the Ghoshti but also that the receipt of the first t... |
Another division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponappa Ayyengar (2) had to consider the question of a claim to a religious honour which consisted of receiving theerthams and prasadams in the temple in certain order of precedence. PRE |
This case also relates to Athinathalwar temple and to the question of precedence among the theerthakars. PRE |
The first question raised was whether there was such an office as theertham office in the temple. PRE |
Krishnan, J., delivering the leading judgment, in rejecting that there was such an office observed: "It may be mentioned that among the Theer thakars there are some 5 or 7 in number, who are called Adhyapakamdars, whose special duty it is to recite these Prabandams and they are remunerated by Inam lands given to them. ... |
They are what may be called the official reciters in this temple." PRE |
Adverting to the question raised, the learned Judge proceeded to observe: "It is clear that, to constitute an office one, if not (1) Mad, 291, 298. PRE |
(2) 961, 962.the essential, thing is the existence of a duty or duties attached to the office which the office holder is under a legal obligation to perform and the nonperformance of which may be visited by penalties ,such as a suspension, dismissal, etc." PRE |
Applying the test in the case of Theerthakars and other Adhyapakamdars, the learned Judge said: "The only difference between the outsiders and the Theerthakars, as shown by the evidence, is that the Theerthakars have special places allotted to them in the temple to stand and recite and they are given the honour of Thee... |
This does not seem to show that they are anything more than a recognized and privileged class of worshipers who are shown special consideration by having places allotted to them in the temple and by being given the honours before the ordinary worshipers in an order of precedence fixed by the usage of the temple." PRE |
On a consideration of the evidence in that case, the learned Judge stated: "On the evidence as set out it must be held that the plaintiffs have not made out the existence of any obligatory duty on the part of the Theerthakars or Of any office called the Theertham office." PRE |
This judgment, therefore, establishes that there is no office called the theertham office in the temple, as there is no obligatory duty on the part of the said theerthakars in the temple. Ratio |
As the claim to the said honour was not established to have been attached as emoluments to the religious office the suit was dismissed. Ratio |
Sri Emberumanar Jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras (1) is a decision of a single Judge of the Madras High Court in a writ petition filed by Emberumanar Jeer questioning the order of the Religious Endowments Board which is the subject matter of (1) , 591. 524 the present a... |
That writ petition was dismissed on the ground that the Board 's order related to administrative matter and, therefore, a writ of certiorari would not lie to quash the same; but in the course, of the judgment, Pandurang Row, J., made certain relevant observations and they are: "What was determined by the Board was the ... |
This matter cannot in my opinion be regarded as a determination of any rights of subjects. PRE |
The rights of subjects referred to in the rule are rights which can be legally enforced and not mere honours or precedence claimed or recognized as a matter of courtesy or usage. PRE |
It is not seriously disputed that the right to obtain the theertham or honours in a particular order of precedence is not a civil right which can be enforced or declared in a Civil Court." PRE |
After citing the observations in Sriman Sadagopa vs Kristna Tatachariyar (1), the learned Judge observed: "Indeed the rule that Civil Courts cannot take cognizance of claims to mere honours or privileges of the nature referred to above has been unquestioned for many years and every attempt to evade that rule has met wi... |
This judgment was taken in appeal to a division bench of the High Court, consisting of Leach, C. J., and Somayya, J., who confirmed the same. PRE |
They observed: "It is acknowledged that a question relating to the distribution of theertham or other temple honours cannot be made the subject matter of a suit as it is not a question which affects a legal right." The remarks we made in regard to the observations of Pandurang Row, J., would equally apply to these obse... |
They do not represent the entire law on the subject, but only a part of it. PRE |
(1) 525 It is not necessary to refer to further citations, for the decisions already cited lay down the relevant principles of law clearly. PRE |
For convenience of reference we may summarize the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a civil court. PRE |
(2) But a suit to establish one 's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites, is maintainable in a civil court. PRE |
(3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non observance of which he may be visited with penalties. PRE |
(4) So judged, there cannot be an independent office of theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order. PRE |
(5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to... |
Having regard to the said principles, lot us now look at the contentions raised in this case. Ratio |
The first submission of learned counsel for the appellant is that, in view of the said principles, the suit should have been dismissed in limine on the basis of the allegations in the plaint. ARG |
In paragraph 4 of the plaint in O. section No. 45 of 1945, the claim of the plaintiff to the office is stated thus: "The plaintiff is the present Emberumanar Jeer and as such the aradhanaikar and trustee of the said 67 526 Emberuraanar temple having been appointed and nominated by his predecessor Sri Sadagopa Ramanuja ... |
" In paragraph 7 of the plaint, his claim to the honours is stated thus: "In his capacity as holder of the office of aradhanaikar and trustee of the Emberumanar temple and as emoluments attached to the said office, the Emberumanar Jeer is by immemorial usage and custom entitled to receive, in the ghoshties that are for... |
These are known as special honours while the honours described in Schedules I and II are known as ordinary honours." Ratio |
It is clear from the said allegations that the claim of the plaintiff to the ordinary and special honours in the Athinathalwar temple is based upon his capacity as office holder as Aradhanaikar and trustee of Emberu manar temple. Ratio |
There is no allegation that he is an officeholder in Athinathalwar temple. Ratio |
In the written statements filed by the defendants the claim of the plaintiff to the said honours is denied. Ratio |
In O.S. No. 46 of 1945 also the claim of the plaintiff to the honours is based upon the same allegations that are made in the plaint in O. section No. 45 of 1945. Ratio |
In the written statement filed by the defendants the said claim is denied. Ratio |
Indeed, the original issues reflected 527 only the allegations found in the pleadings. Ratio |
If the courts had directed their minds to the pleadings, as they should have done, instead of traveling beyond them in search of some plausible basis to sustain the plaintiff 's claim the suits would have been dismissed for the simple reason that on the allegations in the plaint the plaintiff was not an office holder i... |
We shall, therefore, pro ceed to consider the case on the alternative basis on which the claim has been put forward on behalf of the plaintiff in the courts below. Ratio |
To appreciate the said basis, it is necessary to re capitulate the relevant facts. Ratio |
Originally, the District Munsif dismissed the suit O. section No. 320 of 1933 (0. section No. 45 of 1945 on the file of the Court of the Subordinate Judge, Tuticorin) on the ground that the plaintiff has no legal right in respect of which he could seek relief in a civil court. Ratio |
But on appeal the learned Subordinate Judge set aside the decree and remanded the suit for trial. Ratio |
In paragraph 18 of his judgment, the learned Subordinate Judge stated: "In view of the above authorities I am of opinion that when the present plaintiff has come to Court with a specific case set out in paragraphs 7 and 9 of his plaint that his right of precedence to receive theertham, thulasi, satari, prasadam and oth... |
There is an obvious mistake in this statement, for in the paragraphs mentioned therein it is not alleged that the plaintiff has an office in the Athinathalwar temple." Ratio |
Presumably this mistake lead the learned Judge to come to the conclusion which he did. Ratio |
On appeal, in the High Court it was pointed out to the court that 528 temple. Ratio |
But Chandrasekara Aiyar, J., for the first time, allowed the plaintiff to make out a new case. Ratio |
The learned Judge stated the said case in the following words: "One view to take up in this case is what was adopted by the District Munsif, namely, that as the plaintiff admittedly holds no office in the Athinathalwar temple he cannot claim these honours. Ratio |
The other view which found favour with the Subordinate Judge is that owing to the alleged associations of the two temples, their interlinking and their interdependence, the Aradanaikar and trustee of the Emberumanar temple might claim to be regarded as an office holder in the Athinathalwar temple." Ratio |
The learned Judge did not decide the point, but he observed: "But the idea of two temples or Mutts, of equal rank and co ordinate and independent authority or where one is the primary institution and the other its subsidiary or adjunct being linked together for certain purposes of worship and observance of rituals cann... |
He concluded thus: "Of course, before he can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The question whether the origin of this new case is found in the judgment of the Subordinate Judge or ... |
This is a new case not disclosed in the plaint; but after remand both the parties directed their attention to this question and adduced all the relevant evidence pertaining thereto. Ratio |
On remand, the learned Subordinate Judge in an elaborate judgment considered the said aspect of the case. Ratio |
He considered the evidence under three heads, namely, (i) historical, (ii) administrative, and (iii) financial. Ratio |
On the first head after considering the origin of the two temples, the learned Judge came to the 529 conclusion that the idea that the Emberumanar temple was historically connected with Athinathalwar temple could not be "poopoohed". Ratio |
Under the administrative head, he found that till 1926 Emberumanar temple was merely a sub shrine attached to the bigger Athinathalwar temple, and the trustees of the latter temple were exercising administrative control over it as such. Ratio |
Coming then to the financial side, he found that there was sufficient evidence to justify the inference that the two were intimately connected even financially. Ratio |
Passing on to the question of ceremonial and religious association between these two temples, the learned Judge found that there was similarity in the mode of routine and day to day worship in the two temples; but there was no interlinking or interdependence between them in that matter. Ratio |
Then the learned Subordinate Judge pointed out that notwithstanding that there was no interlinking and interdependence in that matter, they were so intimately associated with each other in other religious rites and ceremonies as to lead to the inference that the Emberumanar temple was after all only a sub shrine attach... |
Then he pointed out that the question in the said form was not before Chandrasekara Aiyar, J., but thought that it was open to him to go into the said question. Ratio |
After going into the evidence, he finally came to the conclusion that apart from historical and secular association, there had been also ceremonial and religious association between the two temples and, therefore, the Emberumanar temple was nothing but a sub shrine attached to the main temple of Athinathalwar. Ratio |
On that finding he further held that the plaintiff who was admittedly the aradhanaikar of the said temple was virtually an office holder in the main temple. Ratio |
In the appeals filed by the various parties against the decrees of the learned Subordinate Judge, the learned District Judge of Tirunelveli reviewed the evidence once again under the said three heads and came to a contrary conclusion. Ratio |
On the administrative side he found that the Emberumanar temple was not subordinate to the 530 temple of Athinathalwar, in the sense that the authorities of the latter temple could give orders to the authorities of the Emberumanar temple, that is, the former was not subordinate to the latter temple administratively. Ra... |
On the financial side, he was equally emphatic that the two institutions were not interdependent. Ratio |
On the religious or ritual aspect, the learned District Judge held that, as both the institutions were constructed in the same place, there must have been some connection between the two and in that sense in a general way the Emberumanar temple might be described as a sub shrine. Ratio |
On the said facts, the learned Judge posed the following question for his consideration: "What is the inference to be derived? On the evidence, he answered the question thus: "I hold on the evidence that these institutions are not interdependent or intimately connected in such a way that an office holder of Emberumanar... |
I hold therefore that the plaintiff is not an office holder of the Athinathalwar temple and therefore he is not entitled to file a suit with regard to his rights of precedence in being given theertham." Ratio |
This finding is certainly a finding of fact based upon the entire evidence in the case. Ratio |
In the second appeal, the learned Judge of the High Court, on a review of the evidence, disagreed with the learned District Judge and accepted the finding of the learned Subordinate Judge, and held, for similar reasons, that the plaintiff was virtually an office holder in the main temple; he further held that the plain... |
The first question is one of fact. Ratio |
The learned District Judge, though he differed from the Subordinate Judge, held, on a consideration of the entire evidence that the plaintiff was not an office holder in the Athinathalwar temple. Ratio |
It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of 531 fact however gross the error may seem to be. Ratio |
The judgment of the learned Judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge. Ratio |
The second ground of decision of the High Court is based upon a case that was raised for the first time before it. Ratio |
Nowhere in the plaints or before the two subordinate courts the plaintiff attempted to sustain his claim on his being the holder of the office of arulipad. Ratio |
The High Court, therefore, was not justified in allowing the plaintiff to set out any such claim for the first time in the second appeal. Ratio |
That apart, it does not appear that there is an office called arulipad. Ratio |
A division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponnappa Ayyengar (1) had an occasion to define the word "arulipad". PRE |
There, a claim was made to the office of Theerthakar. PRE |
On the evidence it was held that the plaintiffs had not made out the existence of any obligatory duty on the part of Theerthakar in the temple. FAC |
In that context Krishnan, J., observed thus: ". . . the Theerthakars have special places allotted to them in the temple, to stand and recite and they are given the honour of Thertham and Prasadam, before the outsiders get them; and they have what is called an "Arulipad", that is, their names are called out by the Archa... |
It is, therefore, clear that there is no office designated as " arulipad", but that word only describes the duty of the archaka to call their names to ascertain whether the theerthakars are present in the ghoshti. Ratio |
There is no evidence in this case that the plaintiff, as a theerthakar, has any obligatory duty in the Athinathalwar temple to perform and, therefore, it is not possible to treat him as an office holder in that capacity in the said temple. Ratio |
This leads us to the argument of the counsel for the respondent that, though it cannot be said that the Emberumanar temple is a part or a subordinate of the Athinathalwar temple in the sense that all the (1) 532 office holders of the former are the office holders of the latter, there is sufficient ritual connection bet... |
This intimate religious connection, the argument proceeds, flows from the historical, administrative and financial ties, however loose they may be, that have existed for over a century between the said two temples. Ratio |
This argument may have some validity in a theological discussion or an ecclesiastical court, but cannot obviously be accepted in a civil court. Ratio |
Krishnaswami Nayudu, J., sum marizes the facts in his judgment which, in his view, support the conclusion that the Emberumanar Jeer was virtually an office holder in the Athinathalwar temple. Ratio |
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