The Board of Commissioners for the Hindu Religious Endownments vs Parasaram Veeraghavacharlu and Others

Varadachariar, J.—This is an appeal by the Madras Hindu Religious Enaowments Board against a decree of the District Court at Guntur

cancelling a scheme framed by the Board in 1929 for the proper administration of the affairs of a Vishnu temple at Manthena, a village in the

Gannavaram Taluq of the Kistna District. The scheme purported to deal with the temple as the temple of Sri Gopalaswami (or Venugopalaswami)

and it vested certain properties in trustees to be appointed for the temple. The plaintiffs (respondents 1-3) who were in possesslon of these

properties raised a contention, even before the scheme was framed, that the temple of Gopalaswami in that village had fallen into ruins before

1819, that there is no such temple now in existence and that the Board was confusing it with the temple now in existence which was built by the

villagers between 1819 and 1847 and dedicated to a different Clauseanar, J. deity named Chennakesavaswami. Relying on the decision in Board

of Commissioners for the Hindu Religious Endowments and Others Vs. Sreemathi Rukmini alias Kunhikavu alias Kuthiravattath Kongasseri

Puthukulangara Amma Neethiyar and Another, they contended that the Board had no jurisdiction to frame a scheme for a temple which had

ceased to exist or to deal with endowments alleged to belong to such a temple. As regards the properties in question, they contended that they

were or had become absolutely entitled thereto in their own right, that the existing temple had no manner of right to these properties, and that in any

event, the inam (which according to them comprised only the melwaram) should not be held to be the property of the temple as it was their own

service inam held on condition of Archakatvam service. As the Board framed a scheme, ''ignoring the above contentions, the plaintiffs filed this suit

u/s 57(3) of the Madras Hindu Religious Endowments Act of 1927, praying for the cancellation of the scheme or its modification by the omission

of all the provisions therein relating to the A, B and C scheduled lands and for an injunction restraining the Board and the Temple Committee from

putting the scheme into force.

The plaint repeated the contentions above summarised. The written statement filed by the Board denied that:

The suit temple became extinct before Fasli 1229

And added that:

Its existence was recognised by the Inam Commissioner and it exists even to-day.

Neither the denial nor the averment about the ''suit temple'' is very informing. It was not the case of the plaintiffs that there was no Vishnu temple

in existence in the village, but they contended that the temple of Gopalaswami with which the Board purported to deal had long ago ceased to exist

and that the newly built temple now found in the village belonged to another deity known as Chennakesavaswami. Relying on references made in

some documents even to the existing temple as Gopalaswami temple, the Board at one stage of this litigation maintained that such description of the

temple was right; but it was later on conceded on its behalf, that the suit might be proceeded with on the footing that the idol now found in the

temple is that of Sri Chennakesavaswami. This difference in the embodiment of the deity has all along been insisted on by the plaintiffs as involving

important legal consequences. The allegations in the plaint as to the plaintiffs'' title to the suit properties and as to the nature of their interest in the

said properties were also traversed by the written statement.

A large number of issues were framed by the District Judge of Kistna, when this suit was pending on his file with a number of similar suits. Later

the suit went to the District Court of Guntur where the issues seem to have undergone revision. One District Judge (Mr. P.C. Lobo) before whom

the case came on for trial ruled that:

Questions of title to the inams are foreign to the scope, of the suit tinder Section 57(3) of the Religious Endowments Act, because the Board itself

cquld not adjudicate on such questions under the guise of settling schemes.

Mr. Chandrasekhara Aiyar who finally heard the suits accordingly restricted himself to the issues numbered by him as XX (a) (b) and (c). We

may observe in passing that even sub-heads (&) and (c) do raise the question of the title to the properties; further the discussion of sub-head (a),

though it purports to raise only a question of jurisdiction, involves as will presently appear, a consideration of the title to the suit lands. Once it was

found that the old temple of Gopalaswami had ceased to exist and that the idol in the present temple wasthat of Chennakesavaswami, the learned

District Judge came to the conclusion that the existing temple is a ''new institution'', one ''entirely different from the old temple'' and on that footing

he held that the principle of the decision in Board of Commissioners for the Hindu Religious Endowments and Others Vs. Sreemathi Rukmini alias

Kunhikavu alias Kuthiravattath Kongasseri Puthukulangara Amma Neethiyar and Another, would come into operation:

The scheme must go ''he said'' as having been framed to govern a non-existing temple.

Towards the end of the judgment, he also recorded findings to the effect that the subsequently constructed temple of Sri Chennakesavaswami ''

has nothing to do with the suit inams '' and that the plaintiffs were not estopped from denying. the continuance of Gopalaswami temple or the

continuance of their services in a temple of that name.

We are not able to concur in the view taken by the lower Court that the principle of Board of Commissioners for the Hindu Religious

Endowments and Others Vs. Sreemathi Rukmini alias Kunhikavu alias Kuthiravattath Kongasseri Puthukulangara Amma Neethiyar and Another, is

applicable to the circumstances of the present case. There was in that case no temple in existence at the time the Board tried to exercise its powers

and this Court held that the Board could not claim to exercise control over certain properties, merely on the ground that they were attached to a

temple once upon a time. It will be noticed that the learned Chief Justice took care to restrict his observations to a case where the temple had

permanently ceased to exist and there was no apparent intention of bringing it into existence again. Here, we have a Vishnu temple admittedly in

existence in the village and there can be no doubt that it is the management of this temple that the Board intended to regulate by the proposed

scheme. The description of the temple as that of '' Gopalaswami'' could in other circumstances have been over looked or rectified as at best a mere

misdescription; the real '' matter in controversy between the parties is as to whether the Board was entitled to treat the suit inams as belonging to

the existing temple, when framing a scheme for the administration of the temple and its endowments. This way of stating the point for decision must

itself suffice to show the inappropriate-ness of wholly excluding questions of title from the purview of proceedings before the Board or before the

Court in relation to schemes for the management of temples; indeed it seems to us impossible to exclude questions of title. The allegations in the

plaint and the issues framed in this case raises intricate points bearing upon the question of title; and unless the Court is to avoid deciding the real

point in controversy between the parties, we do not see how these issues can be struck out. The suit is after all one filed in a Court of plenary

jurisdiction and though its institution became necessary because of the framing of a scheme by the Board, we do not see in that circumstance

sufficient justification for the view that the trial of the suit must be limited in the manner laid down in the judgment of the lower Court. Even as

regards the power of the Board, it seems to us incorrect to say that it cannot deal with a question of disputed title. As observed in Anjaneya Sastri

Vs. Kothandapani Chettiar and Others, it may not always be possible to frame a scheme without coming to some conclusion as to the income

available or as to the properties to be managed. (See also (1899) L.R. 26 I.A. 199 (Privy Council) Any view taken by the Endowments Board

cannot of course affect third parties in hostile possession of the properties nor can it always be final even as against parties appearing before the

Board. The Civil Court cannot in any view decline to adjudicate on the question of title when it is raised before it. We have accordingly heard

arguments on the question whether the suit inams can be held to belong to the existing temple of Sri Chennakesavaswami.

We may briefly dispose of the plaintiffs'' claim of absolute private right, based on the alleged grant from the Zamindar or from Mr. Russell. The

lower Court has rightly declined to accept the story of a recognition by Mr. Russell of a private right to the property in the plaintiff''s predecessors,

after the destruction of the old temple. No such claim was put forward during the inam enquiry and the confirmation of the inam to the. temple

negatives the truth of this basis of claim. Any documents obtained by the plaintiffs'' predecessors from the Zamindar''s officials after the date of the

permanent settlement (for example, Exs. E, K and L), whether on some representation as to the alleged order of Mr. Russell or otherwise, cannot

affect the right of the temple to the inam. Though the inam was granted by Raja Apparao, the grant was made by the Raja at a time when he

represented the sovereign power; after the permanent settlement, his successors had no power to interfere with pre-settlement devadayam inams.

The plaintiffs'' claim of prescriptive title is equally untenable. They and their prede-cessors-in-title have admittedly been all along Archakas in

charge of the existing temple and there have been no other trustees; the result is that if the inams could otherwise be regarded as belonging to this

temple, it is not open to them to plead that their possession was adverse to the temple.

The contention mainly pressed on us on behalf of the plaintiffs accordingly was that the suit inams were not granted or confirmed to

Chennakesavaswami and as this idol is a different juridical person from the old idol (of Gopalaswami) which had disappeared, this idol cannot

claim to be the owner properties which once belonged to the other idol. It has not been suggested that the destruction of the old idol or of the old

temple had the effect in law of putting an end to the Devadayam character of the inam (Bhupati Nath Smrititirtha v. Ram Lal Maitra ILR (1909)

Cal. 128) but it has been argued that property belonging to one idol cannot be claimed by a new idol unless it has been consecrated with the same

name. This contention seems to us to ignore the effect of the inam proceedings and rests on a too literal interpretation of the observation of the

Judicial Committee to the effect that the endowments of a temple are in an ''ideal'' sense vested in the idol.

While it is fairly certain that the old temple ceased to exist somewhere about 1819, the evidence does not enable us to find definitely when the

old idol, that of Venugopalaswami, ceased to be worshipped. Ex. C of 1847 mentions that in the newly constructed temple the ""Image of

Chennakesavaswami Varu has been installed"". But, in the inam papers of 1859 and 1860 reference continues-to be made to Gopalaswami Varu

even while the destruction of the old temple and the construction of a new one are noted. Some of the inam papers purport to be signed by one

Vuppuluri Anthayya who has also signed Ex. C. It cannot therefore be said that the statement in the inam papers must be the result of ignorance;

nor do we see sufficient reason for attributing any fraudulent purpose to anybody and assuming that a false statement must have been made. In Ex.

XIV, column (2) the person then in enjoyment of the inam (admittedly a predecessor in title of the plaintiffs) is described as "" Archaka of Sri

Gopalaswami Varu "". It was suggested by respondents'' learned Counsel that this might be read as merely meaning that he was formerly the

archaka of that deity when that deity was in existence. We do not think that that will be a fair reading of the document, because column (5) clearly

implies that Gopalaswami Varu was regarded as the present enjoyer. Ex. IV mentions in column (8) that the pagoda was then well kept up and

there again, it is referred to as Gopalaswami pagoda. The recommendation of the inam authorities was that the inam might be confirmed to the

pagoda and that was accordingly done. This can only mean that the authorities confirmed it in favour of the existing pagoda. In Ex. C, there is a

reference among the heads of remuneration to be received by the archaka, to ""income arranged in the village"". We cannot agree with the

contention that this merely refers to the two heads next described. We rather think that it is an independent head and in all probability refers to the

suitinams. There can thus be no reasonable doubt that in 1860 these inams were being enjoyed by the archakas as being attached to the suit temple

and that the worship therein was described as the worship of Sri Venugopalaswami.

The learned District Judge found it difficult to say when the idol of Venugopalaswami ceased to be worshipped in the village. Referring to the

existence of a broken image of Venugopalaswami at a distance of a furlong or a furlong and half from the temple, he observes that:

It is possible that this image gave the original name to the temple and it may be that this idol was the presiding deity at one time in the premises

occupied by the present temple and that it had to be cast away as it happened to become mutilated by accident or design.

He is however unable to fix the time when this might have happened; nor does he feel sure whether the present temple was built on the site of

the old temple or in another place. But, as already stated, he was of opinion that the case could be decided on the footing that with the

disappearance of the old temple and the old idol, the old institution ceased and that the present temple must be regarded as a new institution. He

strongly condemned the attempts of the plaintiffs and their predecessors to disannex the suit inams from the religious purposes for which they were

intended; but he felt reluctantly obliged to come to the conclusion that the new temple could not claim title to the suit inams. In this state of the

record, we propose to deal with the question of title on both hypotheses, namely, that the idol of Gopalaswami might have ceased to be

worshipped even prior to the inam enquiry (indeed prior to the construction of the inam enquiry) or its worship might have come to an end only

after 1860. This latter alternative would, in the light of Ex. C, imply that both the idols, namely, that of Gopalaswami and of Chennakesavaswami

must for some time have been worshipped in the existing temple.

Turning now to the contention advanced on behalf of the plaintiffs that, as Sri Chennakesavaswami was according to the Agama Sastras a

different manifestation of the deity from Sri Venugopalaswami, the two idols must be regarded as different juridical persons and that no claim could

be made by or on behalf of Sri Chennakesavaswami to the inams which had been granted for the worship of Sri Venugopalaswami, we may state

that we are prepared to assume that according to the Agamas there are well-recognised distinctions based on murtibheda (difference of form) with

corresponding difference in the Dhyanasloka (the manner of contemplation). But we are not prepared to hold that from this difference the legal

result contended for, on behalf of the plaintiffs, necessarily follows. The principle of the legal personality of an idol and of the, vesting of property in

such personality cannot be taken quite literally. Observations to that effect were made by the Judicial Committee in some cases, only with a view to

emphasise the idea that the endowments of a temple are not vested in the trustees but are only managed by them. The judgments delivered by the

Full Bench in Bhupati Nath Smrititirtha v. Ram "" Lal Maitra ILR (1909) Cal. 128 point out the limitations to that theory of vesting and the

incongruities to which a literal adherence to it must lead. As explained in that case, the purpose of making a gift to a temple is not to confer a

benefit on God but to confer a benefit on those who worship in that temple, by making it possible for them to have the worship conducted in a

proper and impressive manner. This is the sense in which a temple and its endowments are regarded as a public trust. (See De Soma v. Vaz ILR

(1887) Bom. 137.)

Looking at the facts of this case from that point of view, the true position is that as the inams in question were granted by the then sovereign

authority for the conduct of ''Nitya Naivedya and Deeparadhana'' in the Vishnu temple then in existence in the suit village, the grant was in

substance one intended to afford facilities for the residents of the village to carry on the worship of Vishnu. As the inam was by its terms one to

enure only so long as the temple existed (see Col. 10 of Ex. F), it was open to the state to resume it when the old temple ceased to exist. But, by

the date of the Inam Commission enquiry, a new temple had been built and the worship of Vishnu (under whatever name) was being carried on

there. The authorities did not therefore think it right to resume the inam but preferred to allow it to be used for the conduct of the worship in the

newly built temple and accordingly confirmed the inam. It seems to us an unnecessary importation of legal fiction to ignore these broad facts and to

hold that the disappearance of a particular image from the temple (whether before or after the inam proceedings) had the effect of disannexing the

inams from the existing temple, though worship continues to be carried on in it for the benefit of the villagers. We set aside the finding of the lower

Court on this point.

In the result, the appeal is allowed, the decree of the District Court is set aside and the suit is remanded to that Court for trial and disposal, in

the light of the foregoing observations. Costs to abide. Refund of stamp duty on the memorandum of appeal.

C.M.A. No. 321 of 1932.

We understand that in view of the pendency of A.S. No. 254 of 1934, this CM.A. was not remanded, when the rest of the''connected batch

were remanded. (See Ramiah v. Hindu Religious Endowments Board, Madras (1934) 68 M.L.J. 494 : ILR 58 Mad. 764.) Now that we are

remanding the main suit itself, this miscellaneous appeal will also be remanded to the lower Court to be dealt with in the light of the decision in

Ramiah v. Hindu Religious Endowments Board, Madras (1934) 68 M.L.J. 494 : ILR 58 Mad. 764 and of our observations in the judgment just

delivered in A.S. No. 254 of 1934. Costs to abide.

At the request of the respondents'' learned Counsel we wish to make it clear that we have not decided or even heard arguments on the

question whether inam was granted to the temple or to the archaka. That is raised by one of the issues in the case and will be dealt with by the

lower Court in due course. We have only dealt with so much of the case as raised the question whether the present temple can claim the inams at

all, even if it be assumed that the inams had been granted to the old temple.