Thathachariar and Others vs Srinivasaraghava Aiyangar and Others

Pandrang Row, J.—This is an appeal from the judgment of Venkataramana Rao, J., in S.A. No. 469 of 1932 dated 14th April, 1936. The

second appeal arose out of a suit for a declaration that the plaintiff and his family were entitled to the first honours, namely, Thirtham, Thulasi and

Sri Satari on the occasion of the Pavitrotsavam festival in the temple of Sri Sarangapaniswami at Kumbakonam. The plaintiff''s case was that he

and his family had been performing the said festival from time immemorial and that immediately after the prayers or worship are over an offering of

food prepared at the plaintiff''s expense is offered to the deity and after Karpoora harathi the plaintiff has to be given Thirtham, Thulasi, etc., and

Sri Satari has to be placed over his head with parivattam, that is, a piece of silk cloth. The claim was thus, as stated by Venkataramana Rao, J.,

rested on long standing custom and practice"", and related entirely to ""first honours"" in connection with the festival which the plaintiff claimed to be

entitled to conduct in the temple. The only question that arose before Venkataramana Rao, J., was whether the decree passed in the suit in respect

of these honours was right or whether the Court had no jurisdiction to pronounce such a decree as the subject-matter of the litigation was not of

the nature of a civil right and therefore not within the jurisdiction of a Civil Court. The learned Judge referred to several decisions bearing on the

point, namely, Sri Rungachariar v. Rungasami Battachar ILR (1908) Mad. 291, Athan Sadagopachariar Swamigal v. Elayavalli Srinivasachariar

(1913) M.W.N. 289, Thirumalai Alwar Aiyangar Swamigal and Others Vs. Lakshmi Sadagopa Aiyangar and Others, and Periyanan Servai v.

Mahadevan Ambalam (1935) 41 L.W. 752. He expressed the opinion that if the question were res Integra he should have been inclined to follow

the observations of Sadasivier, J., in Athan Sadagopachariar Swamigal v. Elayavalli Srinivasachariar (1913) M.W.N. 289, apparently referring to

that learned Judge''s observations on pages 299 and 300. But he was of opinion that he was bound to follow the Bench decision in Thirumalai

Alwar Aiyangar Swamigal and Others Vs. Lakshmi Sadagopa Aiyangar and Others, in which it was decided that the honours claimed were

appurtenant to the right of worship and therefore the right to such honours was a civil right, it being assumed or not contested seriously in that case

that the right to perform the festival was a civil right. The learned Judge however referred to Periyanan Servai v. Mahadevan Ambalam (1935) 41

L.W. 752 also a Bench decision, which expressly dissented from the proposition laid down in Thirumalai Alwar Aiyangar Swamigal and Others

Vs. Lakshmi Sadagopa Aiyangar and Others, as will be seen from the extract given in the judgment appealed from:

A special kind of worship, to which some dignity is attached, butno emoluments of value are attached, cannot, in our opinion, be the subject of a

suit in a Civil Court. To this extent we do not agree with the decision in Thirumalai Alwar Aiyangar Swamigal and Others Vs. Lakshmi Sadagopa

Aiyangar and Others, .

In these circumstances it is not possible to say why the learned Judge thought that he was bound to follow the Bench decision in Thirumalai

Alwar Aiyangar Swamigal and Others Vs. Lakshmi Sadagopa Aiyangar and Others, and not the Bench decision in Periyanan Servai v.

Mahadevan Ambalam (1935) 41 L.W. 752 which was a later decision and more or less coincided with his own view on the subject. Whatever

that may be, we have to decide the question whether the right, that is claimed in the present suit, to first Thirtham, Thulasi and the placing of Sri

Safari on the head, is a civil right which can be agitated in a Civil Court and decreed by a Civil Court. We are of opinion that the view enunciated

in Periyanan Servai v. Mahadevan Ambalam (1935) 41 L.W. 752 is right. It is not disputed that where a religious office is claimed any emoluments

attached thereto may be sued for in a Civil Court either with the office or without the office; in other words, where a man''s right to the office, is not

disputed, but he does not get his emoluments he may sue for the emoluments in a Civil Court; or if his claim to the office is not recognised he may

sue for the office as well as for the emoluments. But the right to perform a festival cannot in our opinion be regarded as a right to an office. An

attempt was made to apply the analogy of office to the case of a right of worship in Thirumalai Alwar Aiyangar Swamigal and Others Vs. Lakshmi

Sadagopa Aiyangar and Others, but that attempt did not succeed, the Bench having declined to accept that contention which was put forward by

the Advocate-General before them. There is no doubt at the same time that a right to take part in public worship in a temple, or of a deity outside

while being taken in procession is a civil right. The question however remains whether the right to individual and exclusive worship of the deity, that

is, to the exclusion of other worshippers, is a civil right. It is however not necessary to decide whether such exclusive right of worship is a civil right

for the purpose of this appeal. It is enough to say that the point is not conceded definitely by Mr. K. Bhashyam Aiyangar who appears for the

appellants, and that it is a question that may have to be fully considered on some future occasion when it is necessary to do so. In the present

appeal it is possible to start with the assumption that the right to such exclusive worship is a civil right. Even on this assumption it does not follow

that the right to the ""first honours"" that are claimed in the present suit is a civil right. The right of worship is one thing and the right to receive certain

honours or trifling gifts such as Thulasi, and holy water, is another. According to Sadasivier, J., the latter are only conferred by grace of the deity,

and cannot be claimed as of right. Even otherwise, and even assuming that the right to receive Thirtham, Thulasi, and to have the Sri Safari placed

on one''s head is a necessary concomitant of worship, it does not follow that precedence or the order in which these things are done is a civil right.

In the present case it is clear from the reliefs sought in the plaint as well as from the decree that has been passed in the plaintiff''s favour that the

relief that was sought for and granted was to enable the plaintiff to get what are known as ""first honours"" to the exclusion of the Patrachariars. The

plaint seeks first honours to the exclusion of the Patrachariars and the decree also declares that the plaintiff and his family are entitled to first

honours as stated in the plaint and not the Patrachariars of whom defendants 2 to 5 are the representatives. The decree further restrains the

receiver, first defendant, by a permanent injunction from showing any first honours to the Patrachariars, and from refusing to show such honours to

the plaintiff. In other words, the controversy between the parties is not whether the plaintiff and his family are to get Thirtham, Thulasi, etc., at all,

but that they should get them before any one else, and in particular, before the defendant-Patrachariars get them. So far as we can understand,

these defendants have no objection to the plaintiff and his family getting the Thirtham, Thulasi etc., after they themselves are given the same; and so

far as we can see, also, the plaintiff has no objection to the Patrachariars getting these things after the plaintiff and his family get them. This is a clear

indication of the fact that the actual and real controversy between the parties is not merely the right to receive the particular articles or honours

mentioned in the plaint, namely, Thulasi, Thirtham, and Sri Safari, but receive them before any one else and in particular the Patrachariar-

defendants. It is therefore a mere question of dignity or precedence and nothing more. The right to a dignity or precedence of this nature cannot in

our opinion be regarded as a right of civil nature, whether it is claimed in a temple or elsewhere so long as it is not attached to an office. It follows

therefore that this appeal must be allowed and that the decree which adjudicates upon matters which are not rights of a civil nature must be set

aside. The appellants are entitled to have their costs from the plaintiff-respondent in all the Courts.