Kandasawmy Mudali and Others vs Sabraya Mudali and Others

The suit is brought for a declaration that the plaintiffs, the trustees of the Subramanyan Koil temple, are entitled to take their idols in procession

through the Koothadum Pilliar Koil and Jayaram Chetty Streets of Saidepett. The plaintiffs plead that it has been customary to carry these idols in

procession through these streets and they contend that even independently of custom they are entitled to do so as the streets are public streets. An

order passed by the District Magistrate u/s 144 of the Criminal Procedure Code restraining the plaintiffs from carrying their idols in procession

through those streets is the cause of action alleged. The defendants Nos. 2 to 4, the trustees of the Karani temple, plead that the Koothadum Pilliar

Street belongs to that temple and to the owners of the houses on either side of it. Similarly, defendants Nos. 6 to 9 plead that Jayaram Chetty

Street belongs to the Perumal temple of which they are trustees and to the owners of the houses on either side of the street. Both of them deny that

they are public streets, they deny the custom sot up on behalf of the plaintiffs and they also maintain that it is against the Sastras and law to allow

the trustees of the Subramanyan temple to carry the idols in procession through these streets.

Both the Courts have found that the streets are public streets. They have also found that the plaintiffs have not established any custom of

carrying the idols of their Subramanyaswamy temple in procession along these two streets in question, although they may have done so on special

occasions. The Munsif further held that even if it is a public street, yet the plaintiffs have no right at common law to carry their idol in procession

through the public streets or to use such streets for the purpose of religious worship when the idol is carried in procession. This, of course, involves

the result that the defendants, the trustees of the other temples, also have not the right to use those streets for the religious processions of their own

idols. It was also held by the Munsif, that even assuming that the plaintiffs have got this right, still, as no special damage has been proved, the suit is

not maintainable. On appeal the Judge disagreed with the Munsif on both the questions, which he had decided against the plaintiffs. Ho found that

the plaintiffs are entitled to maintain the suit, though no special damage has been proved. He further held that ordinarily the trustees and the other

persons interested would be entitled to use a common highway to carry their idols in religious processions. But he was further of opinion, if we

have correctly understood his argument, that festivals and processions in Hindu temples are governed by rules laid down in the various agamas

(sacred writings of the Hindus in regard to ceremonials) and as it is laid down in the agamas that, when an utsavam festival is to take place certain

ceremonies, such as navasauthi have to be performed and that another deity should not be carried in procession within those streets so along as the

effect of that ceremony is believed to exist, and the defendants trustees having performed navasatuhi in these streets the plaintiffs ought not to be

allowed to take their idols in procession. On this ground he dismissed the plaintiffs'' claim. In appeal it was contended before us that the Judge''s

decision is opposed to the various decisions of this Court and the right of the plaintiffs to use a public highway for religious processions must be

recognised.

As to the special ground which the judge has relied, we may observe that the ''grandha'' which has been relied on is not shown to be of any

authority whatever and the defence witness examined is really not an expert witness. We attach no value, therefore, to the evidence of this witness,

the Gurukkal, or to the grandha, Exhibit XVIII. But whatever may be the value of that grandha, we are of opinion that it has now been settled by a

course of decisions, with which we agree, that the right claimed by the plaintiffs ought to be upheld.

We proceed to refer to those decisions as it has been earnestly pressed upon us by Mr. Sundara Iyer that a decision to that effect would be

entirely opposed to the customary law of this country.

In Muthialu Chetti v. Bapum Saib 2 M. k140, the rule of law is stated in these terms. ""It is a right recognised by law that persons may for a

lawful purpose, whether civil or religious, use a common highway by parading it attended by music, so that they do not obstruct the use of it by

other persons."" And passing in procession attended by music is stated to be one of those purposes and it was further observed that ""if the

procession be of a religious character the prohibition of it may be an interference with the free exercise of religion.

Similarly in parthasaradi v. Chinnakrishna 5 M. l 304 it is decided that ""persons of whatever sect are entitled to conduct religious processions

through the public streets, so that they do not interfere with the ordinary use of such streets by the public and subject to such directions as the

Magistrates may lawfully give to prevent obstruction of thoroughfare or breaches of the public peace.

In the Salem case, Sundaram v. The Queen and Ponnusami v. The Queen 6 M.j 203, which was heard by a Bench of three Judges, it was

pointed out that as long ago as 1857 the right to go in procession through certain streets attended with music, etc., was held to be a natural right

inherent in every subject of the State and that user was not necessary to the creation of such a right. With reference to the privileges claimed on the

ground of caste or creed the Chief Justice in that judgment observed ""that they"" (the privileges claimed) ""had their origin in times when a state

religion influenced the public and private law of the country and are hardly compatible with principles which regulate British Administration, the

equal rights of all citizens and the neutrality of the state in matters of ''religion''. He also pointed out that the ""prejudices of particular sects ought not

to influence the law."" The other two learned Judges agreed with the Chief Justice. Then in Sadagopachariar v. A. Rama Rao 26 M.k 376, the

same contentions were put forward as are now raised before us and the proposition that the right to conduct religious procession through public

streets, with the qualifications already stated, is a right inherent in every person was again re-affirmed and it was held that a suit based upon an

alleged immemorial usage and custom for a declaration that the plaintiffs had a right to claim that no procession of any deity venerated by the sect

to which the defendants in that case belonged should take place in any street of the village was unreasonable. That decision went on appeal to the

Privy Council and was affirmed in the case of Sadagopa Chariar v. Krishna Moorthy Rao 30 M.k 185, where their Lordships said that as the

streets in question were public streets ""all members of the public have equal rights in them"" and disallowed the contentions of the appellants that

they had either by immemorial usage or custom any right to prevent the worship and procession of any alien deity in those streets. We are of

opinion that these decisions have conclusively settled the question that has been raised before us by the appellants. The defendants plead that

custom must be followed. They contend that it was customary for their idols alone to be carried in procession and as a procession of the

Subramanyaswamy is an innovation not sanctioned by the Sastras it ought not to be allowed. This claim cannot be distinguished in principle from

the similar claim advanced on behalf of the Muhammadans in the Salem cases when they asked for the prohibition of Hindu religious processions

past their mosque with music, etc. It is identical with that advanced in the cases reported in Parthasaradi v. Chinnakrishna 5 M.k 304 and in

Sadagopachariar v. Ram Rao 26 M.j 376 In the case reported in Parthasaradi v. Chinnakrishna 5 M. h 304 it appeared that the Court had

decided, following the opinions of Pandits, that it was contrary to custom to allow a pagoda to be erected by one sect or religious processions to

be carried on, if such worship was opposed to the feelings generally of the people of that village and they had accordingly prohibited the Vadagalis

from instituting any public worship within the usual range of the processions conducted in connection with the worship of the Tengalai Temple.

When the matter was again brought into controversary in 1881, it was also found by the Munsif that the recital of repugnant mantrams by those

who claimed such right of worship would seriously inconvenience and pain the worshippers at the older temple, yet the claim to interdict

processions was disallowed, though based on a usage, which has been enforced by the highest Court for a long time. The case in Sadagopachariar

v. Rama Rao 26 M.k 376, is similar. In both that case and in the case in Parthasaradi Chinnakrishna 5 M.k 304 immemorial usage and custom

were pleaded and the claim that was upheld by the Courts was found to be practically an innovation. It appears that the respondents'' contention is

extravagant and unreasonable. We are unable to accept the contention put forward that the adherent, of any particular religious sect are at liberty

to prevent the adherents of another religious sect from carrying on a religious procession or from assembling for public worship in public streets on

the ground that such worship had not hitherto been carried on and that it was opposed to religious feelings. They do not contend that the streets

cannot be used for religious processions or for public worship as in that case they would be precluded from carrying their own idols in procession.

Nor is it contended that they had acquired a right in derogation of the rights of the public to exclude all persons from conducting religious

processions or as sembling for public worship in those public streets. It is indeed difficult to see how such a right could possibly to acquired. It

would be unreasonable to allow one sect or class to exclude another on the ground that by the performance of certain rites they have appropriated

a public street, or any portion thereof for their religious processions or worship. In this case it is also found, and that finding is not disputed before

us, that some of the idols are being taken in procession through the said two streets and that even Muhammadans use these two streets for

purposes of processions.

Any such rights, as it is contended for by the respondents, would be inconsistent with the equal rights of all to use the public streets declared by

their Lordships of the Privy Council. The judgment of Subramanyam and Bashiam Aiyangar, JJ., in Vijiaraghava Chariar v. Emperor 26 M.h 554

are inapplicable, because what those learned Judges decided was that the user of a highway for religious worship is not lawful, a decision which if

followed in this case would render the religious processions of the defendants also unlawful, whereas in this case it is claimed by the defendants that

their processions with idols are lawful and those of the plaintiffs alone are unlawful. Moreover, the decision of Bashiam Aiyangar, J., does not refer

to the cases we have already referred to and Mr. Justice Subramanya Aiyer does not dissent from them. If these judgments are opposed in

principle to the decisions we have referred to, we cannot attach any weight to them, more particularly after the confirmation by the Privy Council of

the judgment reported in Sadagopachariar v. Rama Rao 26 M.k 376, where a right in all respects similar to that now advanced by the plaintiffs has

been upheld.

The next question that was argued before us is that as the plaintiffs were not shown to have sustained any special damages the suit is not

maintainable. It is true that where a religious procession along a highway has been obstructed, no action can lie in the absence of any special

damage (see Satku valad Kadir Sausre v. Ibrahim Aga valad Mirza Aga 2 B.k 457, followed in Kazi Sujaudin v. Madhavdas 18 B.j 693. But in

the present case the cause of action is not obstruction but it is the order passed by the Magistrate prohibiting the plaintiffs from carrying on the

religious processions. In the case to which we have already referred, Muthialu Chetti v. Bapun Saib 2 M. j 140, this Court decided that the

plaintiffs in that suit had a good cause of action against the defendants who procured the order of the Magistrate. Similarly in Kooni Meera Sahib

v. Mahomed Meera Sahib 30 M.k 15, where the plaintiffs were restrained by an order passed by the Magistrate from the performance of certain

funeral ceremonies until they obtained an order from a Civil Court, it was held that the plaintiffs were entitled to bring a suit for a declaration of their

rights. The real distinction appears to be as pointed out in Kazi Sujaudin v. Madhavdas 18 B.h 693, that in the one case the cause of action is the

alleged obstruction and in the other the improper order issued by a Magistrate at the instance of the defendants. We are, therefore, of opinion that

the suit is maintainable. We, therefore, reverse the decree of the Courts below and declare that the plaintiffs are entitled to carry their idols in

religious procession or to assemble for purposes of public worship in the same manner as the defendants in the two streets, viz., Koothadun Pilliar

Koil streets and Jayaramchetty Streets and pass the decree as prayed for.

The 10th defendant is entitled to get his costs throughout from the plaintiffs. The plaintiffs are entitled to their costs throughout from the other

defendants.