Gopala Muppanar and Others vs Dharmakarta Subramania Aiyar and Others

This Judgment has been overruled by : Sri Venkataramana Devaru and Others Vs. The State of Mysore and Others, AIR 1958 SC

255 : (1958) 1 SCR 895

Sadasiva Aiyar, J.—The plaintiffs are the appellants in this second appeal. They brought the suit out of which this second appeal has arisen

as representatives of the Ilaivaniyar community in the village of Panakudy. The defendants represent the Brahmins, Mudaliars and Pillars in that

village. The plaintiffs pray for the following main reliefs:

(a) a declaration as against the defendants and their communities, Brahmins, Vellalas and Mudaliars of the right of the plaintiffs and of their

castemen residing at Panakudy to go so far as the Sabapathy Sannadhi and as far as the front of the Pulliarai in the Amman Sannadhi in the said

Panakudy Sri Ramalingaswami Temple and worship the Swamies and Amman and to receive prasatham, etc., after performing Abishekam,

Archanai, Neivediam, etc., during the Mandagapadi occasions and on ordinary occasions;"" and

(b) a permanent injunction restraining the defendants and their community from causing any obstruction to the plaintiffs and their castemen in their

performing the above acts claiming the said right by virtue of such declaration.

The principal compartments of an ordinary Siva temple are (1) the Garbagriham where the principal fixed image is established and which is the

holiest part of the temple; (2) the next outer hall called the Arthamantapam (Half-hall) and (3) a further outer hall which is called the Maha

Mantapam or Big Hall. As the principal image usually faces east, these three rooms or halls lie usually east of one another. (In the Siva Temples the

big outer Nanthi, the Flag staff and the Balipitam lie still further to the east). The two outer Mantapams (the Artha Mantapam and the Maha

Mantapam) are, under a more elaborate classification subdivided into fractional portions. The Artha Mandapam is divided into (a) Antharala (b)

Mukha Mantapa (c) Dwara Mantapa (d) Snapana Mantapa and (e) Vrisha Mantapa. The Maha Mantapam is subdivided into (a) Bahir

Mantapam and (b) Nritha Mantapam. In the smaller temples (like the one in dispute), the only practical distinction is between the Garbhagriham

and the portion east of 1ts gate up to the Flag staff so far as access of caste Hindus is concerned. The technical names ""Artha Mantapa "" and

Maha Mantapa,"" etc., do not at all appear in the evidence in the suit and though slight mention appears of a Thorana light and Thornakal, the

learned District Judge is unable to come to any definite conclusion as to what is meant by these words. It appears from the evidence of the defence

9th witness, that "" all those who can enter the temple "" (that is, west of the Flag staff) "" can go as far as the Sabapathy Sannadhi,"" that is, up to the

gate of the Garbhagriham and that no sub-division is made of the space into Artha Mantapa, Maha Mantapa, Nritha Mandapa, etc, as regards the

right of access. The plaintiff''s prayers are substantially for a declaration that they are entitled to stand for purposes of worship in what I shall call

the outer Mantapam (that is, the hall between the Flag Staff and the Garbhagriham) and for an injunction against their being ejected therefrom.

It is the case of both parties that so far as the (Garbhagriham) is concerned, it is only the Brahmins who belong to the temple priest sect that

could stand inside it for the purpose of worship. Ordinary Brahmins, Pillais and Mudahars are entitled to worship from the outer Mantapam.

The Plaintiffs allege in their plaints that they belong to a caste which "" according to immemorial custom and according to Hindu Shastras "" (see

4th paragraph of the plaint) were entitled to worship standing in the outer Mantapam and that in November 1907, some Pillars and Mudaliars

began to obstruct the members of the plaintiffs'' community from standing in that Mantapam on the ground that the plaintiffs '' community have no

right to go westward of the Dwajasthambam or the Flag staff. The lower appellate Court''s conclusions might be shortly stated thus (using mostly,

its own language)."" The plaintiffs have adduced a considerable body of evidence proving that their caste people are entitled to go beyond the Flag-

staff and into the Arthamantanam "" in the famous temples of Thiruchendur, Sankaranainar Kovil Courtallam and Srivaikuntam, also in Thenkasi

Melaivasal Tinnevelly, Valliyoor, Kodayam and Tharuvoi. ""Some of the witnesses on plaintiffs'' side are of particularly good credit and the majority

are of good position and means of knowledge. Plaintiffs'' 8th and 11th witnesses are the trustees of the Titu chendur temple, the 8th is a

respectable Vellala, member of the District and Taluk Boards and the 11th is also a Taluk Board member. The plaintiffs'' 9th witness is the Village

Munsif of Sankaranainar Kovil and the Bhatter of the temple there and he navs a beriz of Rs. 750. The plaintiffs 15th witness is the mana-ger of the

Tinnevelly temple. The plaintiffs'' 16th witness is a Brahmin Bank Agent. The majority of the plaintiffs witnesses are of good position and

knowledge. It is not likely that they would derogate from the dignity of the places which they hold sacred by admitting the right of entry of persons

whose presence would otherwise constitute a pollution unless that right really existed"". "" The oral evidence on the plaintiffs'' side is superior to that

on the defendant''s side. It certainly proves that in a number of temples of repute their caste is not excluded from the inner precincts of the temple.

Hence there is nothing preposterous in the plaintiffs'' claim. As their claim is shown to be conceded in a number of temples some of them in most

important districts, and as there is no corresponding evidence on the defendants'' side that it is refused in the temples of equal importance, there is

some reason for viewing the plaintiffs'' claim favourably in the present case.

(2) But though some presumption is raised from this strong evidence on the plaintiffs'' side ""it is not enough to transfer the burden of proof"" from the

shoulders of plaintiffs, that is, the burden of proving that their caste men have got a right to go beyond the flag-staff in this particular temple. The

evidence on the plaintiffs'' side as to this particular temple is ""not so strong as to base an affirmative conclusion on it in plaintiffs'' favour even when

it is assisted by such slight probabilities as may arise from the evidence regarding other temples.

(3) "" It is unnecessary to consider the defendants'' evidence in detail because the plaintiffs'' evidence is insufficient to transfer the burden of proof"".

It is immaterial that the defendants'' witnesses who speak regarding the plaint temple are not entitled to much credit.

It is clear to me on a careful perusal of the District Judge''s Judgment that in his opinion apart from the question of the burden of proof was

originally on the defendants or if the burden of proof was sufficiently shifted on the defendants to prove the exclusion of the plaintiffs from the outer

Mantapam, his conclusion would have been that the evidence on the defendants'' side was wholly insufficient to establish such an exclusion. In

short, the learned District Judge''s judgment is entirely based upon the view that a Hindu belonging to a particular caste who wishes to go into the

portions of the temple between the flagstaff and the Garbhagraham should establish by positive evidence that there is a custom in that temple which

does not exclude him from any of those places.

It seems to me, with due respect, that this will in many cases be tantamount to throwing an impossible burden upon a caste Hindu who wishes to

worship in a temple. There are so many castes and sub-castes in India and the word castes is so, very loosely used, the word not being confined to

designate the four principal castes only. The Mudaliars, Pillais, Karakattars etc, though they are all supposed to belong to the Sudra caste, are

usually considered and spoken of as separate '' castes, '' So also among the Brahmins themselves, there are hundreds of subdivisions throughout

India. That a Hindu pilgrim belonging to one of the four Hindu main castes should be liable to be excluded at the will of a trustee or even

worshippers then present at the temple from going beyond the flag-staff (up to which even persons belonging to other religions are allowed to go)

and that he should be obliged to prove by positive evidence that there is no negative custom to exclude his caste-people seems to me to throw a

distinctly unreasonable burden upon that. Hindu pilgrim or worshipper.

The origin of image worship in temples is stated in the authoritative Puranas to have been in the Threthayugam and subsequent ages. In the first

or Krithayugam, God was worshipped by mankind (which consisted of only one caste,) as immanent in the heart of everything and worship

consisted solely in the service to one''s fellow creatures. As the spirit of universal brotherhood decayed in the second age and notions of inferiority

and superiority among men were indulged in, the inferior man was asked to worship God''s higher manifestations irP the superior man. Then,

disputes naturally rose about relative superiority and inferiority and the sages considered it expedient to introduce image worship in order to

prevent quarrels about superiorities and in order that all men (who had now become divided into four distinct castes) without unseemly squabbles

about their relative excellences might worship God in common image (see the 4th Sloka in the 7th Skanda 14th chapter of Sreemath

Bhaghavatam). Though image worship was thus recommended and laid open to all castes, it was clearly recognised as not the highest form of

worship. (See succeeding slokas). The appropriate mode of worship for the Brahmins was held to be through the media of the Fire and the Sun

and the highest form of worship for all castes was always recognized as that which prevailed in the first age. It is clear from the above that temples

were intended for the worship of people belonging to all the four castes without exception. Even outcastes were not wholly left out of the benefits

of temple worship, their mode of worship being however made subject to severe restrictions as they could not pass beyond the Dwajastambam

(and sometimes not beyond the temple outer gate) and they could not have a sight of the images other than the procession images brought out at

the times of festivals. The Agamas and the Thanthras which regulated the worship in the temples laid down rules as regards what caused pollution

to a temple and as regards the ceremonies for removing pollution when caused. There are, it is well known, Thanthries in Malabar who are

specialists in these matters of pollution. As the temple priests have not the special Saivite initiation of Dheeksha which entitled them to touch the

innermost image and as the touch of the persons who have got no such initiation even though they be Brahmins was supposed to pollute the image,

even Brahmins other than the temple priest Brahmins were in many temples not allowed to go into the Garbhagraham. In one of the Agamas, it

issaid (as freely translated) thus:--"" Saivite Brahmin priests are entitled to worship in the Antharala portion. Brahmins learned in the Vedas are

entitled to worship in the Arthamantabha. Other Brahmins in the front Mantabha, Kings and Vysyas in the Dwaramantabha. Initiated Sudras in the

Bahir Mantabha,'''' and so on.

There is no Mantabham or hall for worship east of Dwajasthambam and it is plain from the Tanthras and Agamas that the Sudras and all castes

above Sudras (including the Anuloma mixed progeny of the four castes) are entitled to stand and worship at appropriate spots west of the

Dwajastamba. I am therefore reasonably clear that it lies upon a person who wishes to restrict a Sudra or one who has a higher caste status than a

Sudra from proceeding beyond the Dwajastamba into the next hall, to establish by proof of a recognised usage of that particular temple that the

individuals belonging to that community or class are not entitled to go beyond the Dwajastambam.

Speaking for myself, if I were not bound by authority, I should like to hold that a custom which prohibits one who belongs to a community which

is not lower than a Sudra caste from going beyond the Dwajastamba is an unreasonable custom and ought not to be recognised. But as even such

unreasonable customs, provided they are not grossly immoral have been held to override the law and Shastras if fully established by evidence, I

think I am bound to follow such rulings.

As was said in the Judgment of the Court of First Instance in the Kamudi case Satikaralinga Nadan v. Rajeswara Dorai ILR (1908) M. 236.

A Court of law cannot reject a custom because it is not in accordance with the principles of equity or individual notions of right and wrong. Courts

of law have recognised and enforced customs of this character although they may be repugnant to generally received notions of what is just and

proper. It is not for this Court to examine whether the doctrines or usages obtaining in a particular temple are defensible from a logical or equitable

standpoint in the light of modern enlightenment and civilisation, but to ascertain correctly, so. far as the materials placed at its disposal permit, what

the custom and usage is as observed and practiced by the community for whose use and benefit the temple which is the subject of the litigation is

dedicated and to be guided by them.

There are certain castes whose touch causes pollution not only to Brahmins but also to Sudras. They are usually spoken of as Yeenjathiyars.

Of course even among Sudras, those who consider themselves more respectable will try to avoid the touch of the less respectable classes though

there is no ceremonial pollution caused by such touch. For instance D.W.I, says in this case I am a Sudra, Caste, Vellala. I do not touch the lower

class of Vellalas."" This is not because their touch causes any religious pollution to the higher class but simply out of the exaggeration and aberration

of caste sentiments, the exaggeration being due to "" class "" sentiment having come in recent times to reinforce caste sentiment. So D.W.I. says "" I

will not touch a Maravar or Edayan"" though he admits that Maravars, Edayans, Asaries and Kammalas, Pillais, Mudaliars and Pillais of inferior

caste, all stand in the next compartment to the Brahmin''s compartment mixed up together. See page 21, lines 20 and 21 of the Printed Book.

D.W. 14 adds "" Koravars, Reddis and Naiyakas are entitled to enter the temple "" which means entering the outer hall. The plaintiffs community,

though of the Sudra caste, was a rather poor and uninfluental community till a few years ago while the Pillais and Mudaliars have been influential

classes all along.

Now, coming to the caste status of the plaintiffs who are Ilaivaniers, it is first to be remarked that the Tamil word ""Vaniyan "" is derived from the

Sanskrit ""Vanija. "" Vanija (Baniya in the Northern Vernacular) merely means a Vysia who has trade as his occupation. The term '' Vaniya '' in

Tamil when used by itself has come to mean a trader in oils. A trader in oil especially when he crushes seeds to obtain the oil is considered to

follow a sinful occupation. Vaniyans who press oil are also called Sekkans, sekku being the oil pressing machine. In the Census Report of 1901

Mr. Francis says at page 182 that for some obscure reason Manu classed oil-pressing as a base occupation. "" The reason is, however, clear

enough. In chapter 4, sloka 85, Manu says that an oil-press (which destroys the lives of innumerable vegetable seeds is not better than a

slaughterhouse and that is the reason why the caste of the Sekkan or Thilavaniyan (shortly called Vaniyan) is considered an impure caste. But the

plaintiffs in this case are Ilaivaniyans, that is, those who trade, in leaves, especially betel leaves and one ought not to be misled by the use of the

word '' Vaniyan'' as part of their caste-designation.

In Thurston''s Castesand Tribes, Vol vi, page 360, Ilaivaniyars are described under the more high-sounding title of Senai Kudayan, They are

also called Kodikkal Pillaimars or Pillaimars, who cultivate the betal vine. In the Madras Census Report of 1901 at page 177 it is remarked "" In

1891 following the Tanjore District Manual the were wrongly classed with Vaniyars, oil-mongers, but they are superior to these in social position

and are even said to rank above Nattu-Kottaichetties"". This latter observation may not be accurate, but there can be no doubt that Ilaivaniyars

have no connection whatever with the oilmongers or Vaniyars. Traders must, according to the true spirit of the Hindu Sastras be classed as

Vaisyas. Owing however to the repression of Kshatriyas and Vysias by the Brahmins in the medeiaval ages, most of the Kshatriyas and Vysias

have descended to the position of Sudras. But there can be no doubt that Ilaivaniyars are at least Sudras and do not belong to the communities

which are lower than Sudras who are called Yeenajathiyars (like Pallars, Chucklers and Pariahs).

The castes below the Sudra are most of the Prathilomas and those who are classed as Anthiyajhas and out-castes or Pathithas. The prima

facie right of the Brahmins to enter the temple was negatived in the case in Venkatachalapthi v. Subbarayadu ILR (1890) M. 293 because the

plaintiff, there, it was proved by the defence evidence, had, in the eyes of the community frequenting to temples became Pathitha and outcaste by

marrying a widow. Though there are 28 Sivagamas, the Kamitagama is the Agama most quoted in these matters and the substance of the other

Agamas has been digested in 18 paddhathies, of which Sakala-gamasara, Varunapaddhathi and Nirvachanapaddhathi are those most frequently

referred to. In the Nirvachanapaddhathi it is said that Sivadwijas should worship in the Garbhagriham, Brahmins from the ante chamber or Sabah

Mantabam, Kshatriyas, Vysias and Sudras from the Mahamantabham, the dancer and the musician from the Nrithamantabham east of the

Mahamantabham and that castes yet lower in scale should content themselves with the sight of the Gopuram. Taking it then as indisputable that the

plaintiffs belong to the Sudra caste, they are prima facie entitled to worship from the Mahamantabham, one of the halls west of the bull near the

Dwajastamba and east of the Garbhagraham.

In Venkatachalapathi v. Subbarayadu ILR (1890) M. 293 the learned Judges quote without dissent the following observations of the Court of

the First instance in that case; "" Temple, of course, is intended for all castes, but there are restrictions of entry. Pariahs cannot go into the court of

the temple even. Sudras and Baniyas can go into the hall of the temple. Brahmins can go into the holy of the holies."" The learned District Judge in

the present case admits that in Venkatachalapathi v. Subbarayadu ILR (1890) M. 293 the burden of proof that a Brahmin was excluded from

worshipping in the inner precincts of the temple was imposed on the defendants who were for exclusion, because the plaintiff who was a Brahmin

would ordinarily be entitled to access into inner precincts of the temple. On the same reasoning, if a Sudra would ordinarily be entitled to access

into the hall beyond the Dwajastamba, it is for those who wish to exclude a. particular community which is not below the Sudra community from

such access to establish the custom to exclude that particular community though they form a sub-division of the Sudras. In the well-known Kamudi

case Sankaralinganadan v. Rajeswara Dorai ILR (1908) M. 236 the Shanars were excluded from access into the temple because overwhelming

evidence proving that they belong to a caste whose touch was pollution (to Sudra), whose occupation of toddy drawing was of a sinful kind and

who were therefore lower than Sudras in status was adduced by those who wanted to exclude them and who unhesitatingly took upon themselves

the burden of proving such right of exclusion. No doubt the person who wished to exclude was the plaintiff in that case while here the plaintiffs sue

for a declaration that they are entitled to be included; but I. think that it would be a wholly unsatisfactory state of things that the status and rights of

a community to take part in public temple worship should depend on whether a member of that community appears as a plaintiff or as a defendant.

The contention of the defendants in this case is based not on the allegation that the plaintiffs belong to a caste which is below the sudra caste or

whose occupation is of a sinful character, but only on the ground that whatever may be the practice in other temples, in this particular temple the

usage is to exclude the plaintiffs from the temple proper. Such a plea not being proved and the plaintiffs as Sudras being prima facie entitled to

worship from the Mahamantabham their suit ought to have been decreed.

In Venkatachallabati v. Subbarayadu ILR (1890) M. 297 Mr. Justice Muthusami Aiyar says that ""the right claimed by the plaintiff to enter into

certain portions of the temple was a right which he was at liberty to assert as a citizen and a Brahmin. ""This shows that each of the principal castes

can rely upon its prima facie right to enter a temple. In the famous Ambalapuzha temple case Dewan of Travancore v. Vakji Jeraji 14 TL.R. 56 the

late Mr. M. K. Ramachandra Rao of the Travancore High Court (then the District Judge of Alleppy) a very orthodox and learned Brahmin Judge,

decided that a Bhatia merchant was entitled to worship from the hall of that famous temple (though he was a foreigner to Malabar) because he

belonged to one of the higher castes. I am clearly of opinion that it is unreasonable to call upon a person belonging to any of the thousands of such

castes existing in India to prove affirmatively that his sub-caste has by prescription acquired a right to get into a particular temple among the tens of

thousands of Hindu Temples dotted over India and if he could not do so, to shut him out of worship in that temple. It seems to me that provided he

proves that he has the status of one of the main castes (or it may be, an intermediate Anuloma status between two of the main castes), it would be

for those who wish to exclude him from the usual position in the temple assigned to a man of his caste status by the Agamas to prove that by the

special custom of that temple, even a person of that caste status is excluded.

Reversing therefore the judgments of the lower Courts I would give a judgment in favour of the plaintiff granting the reliefs claimed in the

prayers (a) and (b) of the plaint subject to a declaration that Brahmins Pillais and Mudaliars are entitled to take precedence over the plaintiffs by

standing in front of persons belonging to the plaintiffs'' caste in the covered portions of the temple between Dwajastambham and the Garbhagraham

where it is intended that the worshippers shall stand and that the defendants 1, 2, and 4 to 9 (the defendants 1 and 2 in their individual capacity and

not as trustees) shall be personally liable for the plaintiff''s costs throughout and the defendants shall bear their own costs.

Reliefs now granted to the plaintiffs shall not operate so as to derogate from the exercise by Brahmins, Pillais and Mudaliars of the right of

precedence.

Tyabji, J.

The question, involved in this appeal would primarily be dependent upon the terms of the original dedication of the temple. As there is no

written trust-deed or its equivalent the Court is left to deduce from the materials before it what the terms of the dedication must have been.

Under these circumstances it seems to me that the proper course is to presume that the dedication was a reflex of the general religious notions

prevailing amongst members of the community for whose benefit the temple was dedicated. It is reasonable to assume that the dedication would

follow the current of prevailing religious views, if something at variance, with the general notions was intended, those different intentions would in

the ordinary course be clearly expressed.

The religious books cited by my learned brother are entirely in favour of the plaintiffs. This part of my learned brother''s judgment I desire

respectfully to adopt and follow. The learned District Judge should therefore have addressed himself to the question whether the defendants had

proved that they had by the original dedication or by what took the place of dedication been given a right to exclude the plaintiffs from the portions

of the temple which the plaintiffs claim to enter. The course he actually adopted was to start on the basis that the burden of proving that the

plaintiffs had a right to enter the temple was initially on the plaintiffs. This may be conceded as part of the general rule that the plaintiffs must prove

their case, but the failure to notice the considerations mentioned by my learned brother is very material. There was considerable evidence on the

plaintiff''s part to prove the existence of what is referred by the District Judge as a ''general rule permitting the access of their caste to temples''.

Evidence to this effect was given with reference to the Tiruchendur, Tinnevelly and seven or eight other temples. It is carefully, I may say

elaborately considered by the District Judge. His conclusion is that the plaintiffs'' evidence is ""superior"" to that of the defendants on this question.

Then the District Judge deals with what he considers to be the second part of the plaintiffs'' case. He says "" Plaintiffs'' direct evidence as to their

right to enter the templets given by 13 persons besides the first plaintiff; nine belonging to Panagudi and the others more or less connected with the

village"". His view of the plaintiffs'' evidence on this part of their case is not equally in their favour. In his opinion it is '''' insufficient to transfer the

burden of proof "". He considers it, therefore unnecessary to deal with the evidence of the defendants in detail. He does say however that "" the

defendants'' witnesses who speak regarding the plaint temple are of much the same quality as regards credit and independence"" and he refers to

the admissions of the defendants that the inferior Vellalars can enter the temple, that the Ilaivaniyans are not excluded from communion with other

castes; in various social connections, that (according to the 13th witness for the defendants) sons of Dasis can enter the temple and that the 3rd

defendant in his written statement refers to the plain-: tiffs'' right to go as far as the Thornakkal. His final conclusion is thus expressed: "" There is

nothing in all that which justifies acceptance of the plaintiffs'' witnesses'' evidence in spite of their lack of credit and independence.''''

I feel the difficulty of appearing to interfere with a finding on fact in Second Appeal--a finding arrived at after so careful a consideration of the

evidence. But the precision with which the learned Judge has intimated his views as regard the evidence of each of the parties on each point

enables us to give effect to his views of the evidence on the basis of the more accurate understanding of the law which my learned brother''s

research has made possible.

Taking the evidence as appreciated by the learned District Judge, the facts found by him may be stated to be that the general practice in regard

to the 9 or 10 temples above referred to is in favour of the plaintiffs, that with reference to the particular temple now in question the witnesses of

both sides ""fail from a lack of credit and independence ""; that it is not proved by the plaintiffs that they have been allowed in the past to enter this

temple as a matter of right; nor is it proved by the defendants that the privilege of excluding the plaintiffs from entering the temple has been asserted

by the defendants and admitted in the past by the plaintiffs.

The result is not doubtful. The defendants have fallen far short of establishing to the satisfaction of the District Judge that usage long prevailing,

uniform and clear leads to the conclusion that the religious trusts declared in connection with this temple gave to the defendants and their

predecessors in title the right to exclude the plaintiffs from it, notwithstanding that the general religion? sentiment would be opposed to such

exclusion.

On the District Judge''s view of the evidence therefore the plaintiffs should have been given a decree in terms of prayers (a) and (b) of the

plaint subject to the declaration of the rights of the Brahmins, Pillays and Mudaliars to which my learned brother refers in his judgment. I agree

therefore in the order proposed by my learned brother.