CH^PY^ii VII

HVAiiw aau^aou:^ Uijo.-.T>tu<T3

PUo’ ill, K T v ;.)

Introduction

Th« provlous chapter dealt with the controversial

problem of the eharaoter of teople, whether public or

private, and the factors which are taken into account by

the courts in the detenaination of the same, ohebait,

Fujari, /xchaka, Panda etc* are some aignifleant religious

offices claiming certain rights and responsibilities in

Illation to the temples. Similarlyy worshippers who offer

prayers in these temples also claln certain important

rights. The pux*pose of this chapter is to understand how

the courts in India have dealt with the problems connected

with rights and duties of these office bearers as well as

the nature and derrree of State control over the same.

:jhebait

In case of the law of Endowments, we always come

across an important tern *3hebait'« Shebaitship is an

office in connection with religious endowments like temples

It is not possible to define precisely the exact position

of the Shebait. Justice Mukherjee explains the position of

the shebait as follows:

^In ancient times . . . all endowments ordinarily

274
 275

were administered by the founder^ himself. The idee of

appointing a 3hebalt is of nore modem growth* When a

Hindu creates an endowment, its management is primarily

in hia and his helrsi and unless he appoints a Shebait» he

hifliself fills that office and in him rests that liioited

2
ownership."
*
The 3hebait is one who seryes and sustains the deity

whose iaage is installed in the temple. Shebaitship

involves two offices of a ministrant to the idol and of a

manager of the endowed properties of the temple. The auprerae

Court clarifies the position of the :ihebait in ahriiaati

Angurbala i^uUick V. Debabrata Kullick^ by sayings

"In the conception of Shebaiti, both the eleraents

of office and property, of duties and personal interest,

are mixed up and blended together; and one of the elements

cannot be detached from the other. It is the presence

of this personal or beneficial interest in the endowed

property which invests Shebaitship with the character of

proprietary rights and attaches to it the legal incidents

of property."^

1 founder is the person who founds a temple and

establishes an idol therein and endows the same with some
material properties.

2 rianohar Mukherjee V. Bhupendranath, 1930 Cal. 791.

3 3 .C .J . 1951 p. 39if.

Xbid• t at p. 399*
 276

Another iMportant question which osne before the

Supreme Court in the Angurbala cese wss how to decide

whether a female is entitled to succeed to the office of

the Shebait. The Court admits this right by saying that

*it is the general law of suoeession that governs succe­

ssion to Shebaitehip as well. Succession to Shebaitship,

even though there is an ingredient of office in i t , follows

succession to ordinary or secular property.*^

The Shebait is the custodian of the idol. In this

oapacity he has to perform some spiritual duties such as

carrying on worship of the idol in the traditional manner,

prayers and invocations in appropriate manner* In addi­

tion, he is also expected to perform temporal functions

such as taking charge of the tes^le and managing its

properties in the best interests of the deity. For

performing these duties connected with the idol, he is

entitled to such remuneration as is allowed by usage and

permitted by the trust.

The legal title to the endowed properties does not

vest in the Shebait, but as an administrator of the

property attached to the temple, he has the right to

institute a suit on behalf of the idol. This right has

been clearly expressed by the Court in Vikram Das V.

Oaulat Ram:

Ibid.. pp. 400-01

 277

public trusts ar« oonosmedp Courts have a

duty to see that their interests end the lntex*eats of

those for whose benefit they exist are s«feguerded* there­

fore, Courts must possess the power to sustain proper

proceedings by thwo in appropriate oases and grant relief

in the interests of and for the express benefit of the

trust.

Rights and Powers of Shebalt

The rights and powers of a Shebait have been well

recognised in the legal provisions and the decisions glv«i

by the courts.

1} A Shebait cannot sell the debutter property and

it may be eonsldered as a breach of trust i f the sale is

7
not Justified by a compelling necessity*'

2) A Shebait cannot acquire adverse title against

the idol and its properties by adverse possession. In

d
Shri Iswar Sridhar Jew V. Susheela BalSi the Supreme

Court points out that i f a Shebait acting contrary to the

terns of appointment, or in breach of his duty as such

could claim adverse possession of the dedicated property

against the idol, it would be putting a premium on dis­

honesty and breach of duty on his part and no property

6 S .C .J . 1956 pp. 427-2^.

7 14ahadeo Prasad V. Karia Bharati 1935 P«C. 44*

d S .C .J . 1954 p. 17.
 27«

which Is d«dieat«d to an Idol would ever be safe*

3) An Important element of the office of the Shebait

le hie power to borrow on behalf of the idol and alienate

the properties of the idol. This power, however, is to be

exercised only in cases of eompelling necessity end that

too for the benefit of the idol or the institution. The

Courts have held that eaoh case will have to be decided

on its own merits and ths general test to decide whether a

particular alienation is beneficial to the institution or

not is whether the transaction concerned is one in tdiich

a prudent owner would enter in the ordinary course of

manageaent in order to benefit the institution,^

The endowed property can be sold in execution of the

decree only when the Court is satisfied that the sale was

Justifiable and inevitable in the interests of the insti*

tution. But the sale of the very temple in payment of

money borrowed is totally rejected by the Courts on the

ground that *the temple has a special sanctity distinct

from other endowed property. To alienate the temple itself

iJL to cut St the root of the very existence of the idol in

the habitation intended by the founder. Hindu sentiment

rXm n th» l i w t t w of t w p l *

9 Prosunno Kumari V. Oolab Chand 2 I .A . 145*

10 Hukundji HaharaJ V* Pursottam Lalji 1957 All. 77<

(Italics mine.)
 279

In view of th« larpoz*tano« of this probI«a of oli«na-

tion of th« ondowed prop«rtl«s by th« Shebait, th« recent

leglalatlTe enactments paaaed by the State Oovemmenta in

India regarding religious endowaents have provided for an

additional safeguard by asking it obligatory for the

trustee or the aanager to obtain the sanction of the

Cooniasioner for bndownents for such alienation.

k) What is said about 3hebait*s pon%r of alienation

is equally applicable to his power of lease. By and large,

the Courts have held that the Shebait cannot grant a

permanent leaae of the debutter Innds except in o^se of

unavoidable necessity. The validity of each transaction

shall be decided in each case on its own merits by the

Court and the prudent behaviour of the Shebait will have

to be Judged on the basie of the facts presented in the

esse. 12

5) The Courts have accepted the power of the Shebait

for creating derivative tenures and estates conformable to

usage. In recent years» the laws^^ enacted by the State

Oovernnents have prevented the Shebaits from granting

leases for nore than five years without the prior sanction

11 For example S e c *3 4 U ) of the Madras Hindu Heliglous

and Charitable ^dowments Act| 1959* Sec. 36 Bosibay
Public Trusts Act etc.

12 Vidya Varuthi T. Baluswaai 1922 P .O . 1^3.

13 For exaaple Sec. 77 of the Madras Hindu Religious

and Charitable Sndowaents Aet» 19^9*
 2B0

of th« Coaalssloner of EadowB«at8 or any such authority

oont«mplated by th« Act it a « If , In a reoent case,

Athiasnathawami DeTasthansn V. IC.Gopalawaai,^^ the Supreme

Court upheld the grant of the lease on the ground that

the Bcme was In conformity vrlth the power of the 3hebait

to create derivatire tenures conformable to usage,

HemoYaj of ohebaltgaip

The poeition of a Shebalt ! • like that of a trustee

and as such he is expected to perfom his functions in

accordance with accepted principles of law and social and «

religious customs* In the event of failure to do so on

the part of the 3hebait| he is likely to be removed and

the removal is valid. A prinary duty of the Shebait is to

M in t a in true and correct accounts because he is responsible

for the due application of trust funds. These accounts

are to be kept in the manner prevailing in e particular

institution. The Privy Council mentions this duty of a

Shebait in clear terns as followss

" • • • the standard of rectitude and accuracy expected

from evex7 trustee of charitable funds is one of the highest

and that standaard must, in all oiroum8tances» be maintained

i •
by the court i f the safety of property held upon such trust

is not to be imperilled throughout British India.

14 1969 3 .C . 33d.
15 Oulsarilal V. Collector of i:.tah. 35 C .W .» . 699.
 201

I f a Sh«bait who la guilty of oiaeonduet or breach

of truat, who mlaapproprlatea the truat funda, who treats

the truat property ea his peraonal property and who falls

to perfom his funetlona and discharge his duties faith­

fully oan be reraoved by the Court. In thla connection the

poaltlon of a Shebait la diatlngulahed from that of an

ordinary trustee* While Shebaitahip ist according to

Hinduf Law, a speclea of heritable pz*operty, the ordinary

truateeahip is not« The grounds for the resovaX, there*

fore, of the Shebait and the trustee are not identiaal.

Secondly, the duties and personal rights of the office are

very delicately mixed in the office of the Shebait and

therefore the reaoval is considered justifiable only when

the Court finds that the Shebait cannot discharge the

duties iaplled in the office %rithout this being detriaental

to the endowment itself*

Pu.lari. Archaica and Penda

The terms Pujari, Arohaka and Panda are often used

as s y n o n y m s I n case of Hindu Religious Endowments* ibven

though the terms Puja and Archana are used to connote the

same meaning, namely worship; there are subtle distinctions*

VThile PuJa is a generic term implying ceremonial worship,

16 For example The Andhra Pradesh Charitable and Hindu

Aeligious Institutions and Endowments Act defines the tern
Archaka as follows : 'Archaka includes a Pujari, Panda or
other person who performs or conducts any Archana, Puja or
other rituals**
 262

Arehana la usually a part of Puja,^*^

In oldan times, tha offlea of Arohaka was looked down

upon as a sercenary office baeauae Arohana was parforsad

by a Vipra for »onatary benefits on behalf of the Yajnan.

In later ya&rS| inducements were given to these people in

the fora of permanent jprants of landa and proiuises of some

important perquisites and privileges* The duty of the

Arohaka is to perform oereaonial rights of worship in the

temple and the incomes derived from the land grants are

oonsidered remuneration for the servioes rendered. By and

large, thia office is hereditary in ehar&cter.

So far as the technical position of the Archaka*^

vis-a-vis the Shebait and Tx*ustee is aonoemedy it is to

be noted that while Shebait is a human lainistrant of the

deity, a Pujari or Arohaka is a servant appointed by the

10
Shebait or a T r u s t e e .^ The Trustee is the representative

17 For distinction between ?uja and Archana see Taradachari

The Lsw of Hindu Keligious and Charitable Kndowments at p*190.

In Bha^wat Purana, a standard classic on devotional

lore Archana Is mentioned among the 9 forms of devotion*

There is no mention of Puja as such.

Id Arohaka is also known as Purohit or Gurukkal*

19 Kalinata Thakurani V* Jibandhan 1962 S .C . 13^9*

 2S)

of th« tttspltt and th« Archaka Is subject to tht discipli­

nary authority of tha formar,

Tha daily worahip diffsrs according to tha tanata

and usagas of tha religious sact for which the temple is

intended and the idol ia consecrated* Whatevsr nay be

tha details of worship and the variations therein, there

can be no doubt that the idnistrotions of various services

involving personal touch of the idol, and often enough,

the recitation of religious hymns are amongst the nom al

and essential features of the Pujari*s duties, at any rate

in temples where the worship is oonductad according to

the Shastras.^^ I

Three questions which arise in connection with the

office of the Arohalca or the Pujari are:

1) What are the rights of the Archaka in relation to

the properties of the tenple where the Archaka performs

his duties?

2} What right the Archaka has over the offerings

collected at the temple?

3) Is a Hindu female entitled to succeed to the

hereditary office of the Archaka or Pujari or Panda?

It will be worthwhile to see how the Judiciary in

India has tried to answer these probleas*

20 Raj Kali Kaur V. Ram Ratan Pandey S«C.J. 1959 P« 493«

 1) Archaka and the Tgmpla Propartleg i By and larg*

the Court* in India hava maintainad that the Archakas do

net hare legal right over the properties of the temple

even though they nay be in poseeeaion of these properties

as a matter of adainistration or nanagenent of the 8f*me,

21
In soae esses where the Arehakas presented such a elaia,

the courts have rejected i t , arguing that the Arehaka

occupies a fudiciary position and cannot prescribe a title

to the temple properties in his posaesslon. It may happen

that the trustees may permit the Arehakas to possess the

proparties in order that their remuneration may be derived

from the surplus income of these lands. The Supreme

Court» however, did not find it proper to make any provi-

eion giving the Archaka possession of propei*ties either

22
towards their maintenance or for expenses of the services*
I

2) Right of the ^.rchaka to the Qfferlotcs z It is

usually noted that the devotees offer to the deity vai'ious

offerings in terns of oashf gifts including valuables*

Very often the Arehakas have laid their claim to these

offerings. But the position adopted, in this oonnectloni

by the Courts has been that the offerings are made to the

deity of which the image is the visual symbol and the

21 Venkatadri T. Seshacharyulu 1947 (I ) 2fl7.

Brahmiah V« Hajeswar Swami Temple 19$3 M&d. 5^0.

22 Budu satyanarayan Y. Tenkatappaya 1953 p* 2^3.

 2Bf

Pujari esanot spproprlat* tha aana a« a natter of rlj^ht.

It has baan observed that, in practice, the Arohakaa have

been held as entitled to the aurplua after perfom ln^ the

Pooja and maintaining; the temple.

In some tenples* the Arohakaa were allowed to share

some offerings as a result of the arrangement entered Into

by the trustees on one hand and the ArchaWas on the other.

This arrangesient has been held by the ootirts as valld*^^

In Ran Rao V« Boerd of CoBmlsslonersi^^ the Supreme Court

held as vf-lld the eustosary share of Olbbl oolleotlons

enjoyed by the Archakas In the Dwarka Tlrumalal temple In

Andhra Pradesh.

In this eonneotlon, the observation of Juatiee

Seshaglrl Ayyar clearly explains the positioni

*^It would be a fraud praotlsed upon the public that

the income derived with reference to the sanctity ond

holiness of a shrins should be regarded ss the perquisites

of the person-ln-charge. It would strike at the very root

of the reliition In Ipdia to hold that the person who

permitted by the worshippers to receive the offerings is

the oimer and not- tbe^trustee of the income.

23 Sri Mahant V. Govlndacharlu 193$ Mad. 295«

24 1965 3 .C . 231 .

23 Subramanya Ayyar V. K<akshmana rtoundan 1919 M.N.N. 914.

 206

3) The right of a feaal» to liTeditanr

26
office of a ?u.1arl: In KaJ ICall Kaur V. Ham Katan Panday,

tha Supraaa Court of India decided a very laportant question.

The question was 'whether a Hindu female Is entitled

to succed to the hereditary priestly office of a Fujarl

and Panda held by her huaband in a temple and to receive

the emoluments thereof** While the trial court in this

case held against the contention of the defendant that the

plaintiff female was not entitled to the office of Fujari

and Panda of Aran Devi because this was against the custom

and usage and practice end also against the 3aatras* The

High Court on the other hand rejected the claim of the

plaintiff to succeed to the office of Pujarl* The learned

Judges of the High Court atteBq>ted to distinguish the

instant ease from that of the Shebaltshlp and came to the

conclusion that while in respect of Shebaiti right a woman

may succeed by heirship, she is not entitled to such

succession in respect of the right of a Panda and Pujari*

The disqualirication primarily arose with reference to the

dutiea attached to the ofrice to the extent to which they

differed from those of a Shebalt.

Since the issue Involved was an important one the

Supreme Court refers to the ease law on the subject and

elarlfies the position on the matter. It points out that

26 aupra n. 20, p. 493*

 2d7

the rellRious offices can b% hT»dltary and that th« right

to 8uch an office t» In th» nattirt of property u n d T th#

Hindu law. Is now well established.^^ In Angur Bala V*

Oebabrata, the right of a female to succeed to the

religious office of 3hebaltohlp was recognised by the

Supreme Court. It was on the basis of this analogy that

the right of a hereditary priest or pu.1arl in a teaple

must Also amount to property where emoluments are attached

to such an o ffice. It has also been held that while in

one sense the right to such religious office is f — ertv.

It Inyolves also substantial elements of duty. It la

held that both the elements of office i>nd property, of

duties and personal interest are blended together in su«k

office and neither can be detached from the ott»r# It

auot also be recognised that In respect of such offices,

especially where they ere attached to public iiistitutions.

the duties are to be regarded as primary and the rights

and emoluments are only appurtenrnt to the duties.

It is on the basis of this established lew on the

subjectf the Supreme Court points out, that if it is found

that the ireoognition of a female's right to succeed to the

hereditary office of Pujari is incompatible with the due

27 Hanohar V, Bhupendar A .I .R . 1932 Cal. 791*

Bhabatranl V. ^shalata L ,R . 70 I .A , 57 (1943)#

2$ 1951 S .C .J . 395. All italles nine. ^

 2dB

disehArg* of tb« dutlts of the ofrio«f h«r rl^ht to

suoc«ed nust b« ntgatlTsd. The Couzi^ at this stsge refers

to the duties of s Pujarl and points out that It was a

well established custom in later times that a female, even

of the recognised limited classes» cannot by herself

perfozv the duties of a pujari. In this connection the

Court refers to the directire fros Brihan Karadiya Puran

where it is stated t

’%/oBen, those uninrested with the sacred turead ( i . e .

neabers of the Dvija class before the initiation ceremony

has been perfomed for them), and sudras are not coapeT^ent
50
to touch images of Visnu or Sira,** ^

The Supreme Court admits this generally recogniaed

incapacity of a female to perform the duties of a pujarl

but at the same time asks the Question whether she is also

incompetent to get these duties discharged by employing

a qualified substitute. In answering this question, the

Court gives a lucid account of the evolution of the office

of Pujarl* It states *the system of hereditary priesthood

appears to have come into vogue from fairly early times*

Vlth the change of social conditions and economic values,

the office of a Pujari or Panda was rendered a lucrative

affair and this enabled the hereditary priests to get these

functions performed by paid substitutes and themselves

29 Quoted in 3araswati*s Hindu Law of LUidowments at

p, 136. - See S .C .J . 1955 at p , 497.
 269

•njoyttd a substantial oargln of Inoono. This mij^ht have

brought into vogu* th« amployMnt of substitutes for the

psrformanes of ths duties of Pujari not only for cacrifi-

oial or other religious rights but also for temple worship*

••• At the present day hereditary priestly offices are

performed by proxies, the ohoice of proxy being of course

limited to small circle pem itte4 by usage.

After taking into account the changes in the nature

of this officey the Court asks the question whether a

female, in view of these things, can be excluded frc»

succession to the hereditary offioe of Pujari on account

of her well recognised personal disqualification to

officiate as such for the Shastrieally installed find

consecrated images in the temples, and whether she could

be denied the capacity to retain the oroperty by getting

the priestly duties efficiently discharf^ed through a

competent substitute.

The Supreme Court, hero, takes a comprehensive

review of the cases reportad on this matter and points out

to varying positions adopted by the High Courts on the

same. It points out that the controversial passage in

Jsgannath's Digest has been relied upon by the Courts to

negative the right of the female to act thjrough substitute.

This passage runs as followsx

30 iiupra n. 20, pp. 49^99*

 290

*Wlv«8 ai^ oth«rsy dlsquaXlfiftd by ««x for the

performance of holy rltes» csonot appoint e subatitutei

as « defiled person eennot perfora e solenn act ordained

by the Ved&Sf therefore wives have no property in the

office of priest

Authorities differ as to the correct import of the

meaning of this passage, \lhlle Qanapati Iyer feels *As

usual with the discussion of Jagannath it is difficult to

say what his final opinion is* But we shall certainly

think that Jugannath*s opinion is that woraen can inherit»

doing the duties through a substitute, but enjoying the

emoluments attached to that o f f l e e . T h e High Court of

Madras has given different Int^erpretations at different

times. In some cases it has denied this right, while in

others this right has been granted. In view of these

different interpretations, the Supreme Coux*t does not

consider «fagannath*s passage as reliable in establishing

the right of woman to succeed to the office of Pujari*

On the basis of the abovementioned reported coses, the

Supreme Court comes to the conclusion:

"... That the usage of a female succeeding to a

priestly office and getting the same performed through

31 Jagannath* s Digest of Hindu l«aw on Contracts and

auccession. Colebrooks translation Vol. I , p« 379, quoted
i b i d .. at p. 499.

32 Quoted Ibid.
 291

II _CQMP#f deputy 1> oti9 that ^"1 Hm fiirtT till

rtcognli^d^ t h T * 1» nothing in nh»

th« oontrTT* Hor c»n It b% mmU that th< recognition of

■ttch » m age im oppo»od to public policy, in the Hindu law

aanae, • • • tho conaidoration of public polioy ean only b«

given effect in the present, state of the law, to the extent

required for enforcing adequate discharge of the duties

appurtenant to the office* Sub.lect to the proper and

efficient discharge of the duties of the o f.Ic e , there can

be no reason either on principle or on authority lo refuse

to accord to a feaale the right to succeed to the heredi­

tary office held by husband and to Ket i.he duties of the

office perfonttsd by a substitute exceptixug in cases where

the usa£s to the contrary is pleaded and established. • • •

This discuaaion is aore germane to the case of a public

tSBple where the idol has been Shaatrically installed and

consscroted and the worship Is in accordance with the

Shastras* • • • i f however, the temple la a private one the

right cannot be seriously challenged*

We have noted this case fairly in detail because it

reflects an authoritative opinion of the Supreme Court of

India on a very controversial matter especially when the

comnentarlee and the decisions of the earlier courts

provided varied and vague interpretations*

33 Ibid.. at pp* 503-04* Italics mine.

 292

!i<aov8l of ArchBKaa

lJJc« iMny other rtllglous offio««| th« offio# of

Arohaica is also subjact to regulation and control by

appropriate authorities. As an Arohaka la appointed by

and reaponsible to the Trustea of the teaple, the Trustee

is empowered to take disciplinary action against the

Arehaka for misoonducti i f any. Moat of the enactments

passed by the State Govemffienta contain provisions for

such regulation and control of the religious office bearers

such as Archaka or Pujari.

The Madras Hindu Ueligious and Charitable b^ndowments

Act (1959) in its Section 56» has made a coaprehenaive

provision in thia respect. This Section provides that

*the trustee nay, after following the prescribed procedure,

i f any, fin e, suspend, r«m ve or dismiss any of them for

breach of trust, incapacity, disobedience of orders,

neglect of duty, aisconduct or other sufficient cause.

This Section also provides for the right of appsal to the

Deputy Comaiaaioner and Commisaioner, by the office bearer

for injustice caused, i f sny. Kven though the general

condition for the removal of a religious servant like

3k Similar provisions are enacted by «

Section 32, Orissa Hindu Ueligious iL.ndowments Act,1951.

Section 32, Andhra Pradesh Charitable and !lindu

Religious Institutions and Endowments Act, 1966.

Section 21(a) Shri Jagannath Temple Act, 195V*

 293

Pttjari or Archaka is th« Bdsoonduct of such an offloa

baarar, aaoh ensa of stiaconduot will hava to oa Judged on

Ita own marita bacaute tha nature of misconduct cannot ba

defined in general terma.

Tha Laura enacted by State Govemmenta provide for

the procedure to be followed, while taking any auch action;

due care is to ba taken in followini; thia procedure such

as when framing a charge, giving an opportunity for re*

presentationt etc. It can also ba noted that the OlTll

Courts have Juriadlction to examine into cases where the

provisions of the Act hava not bean cou^lied with or the

statutory tribunal has not acted in conformity with tha

fundamental principlaa of judicial procedure

In Buddu Satyanarayanan V. Konduru Vankatapaya^^

and C, Periaswami Goundar and others T« Sundaresa Ayyari*''

the Supreme Court had to decide tha issue of the ejectment

of tha Archakas from the Inam properties. In tha former

ease, the Court rejected the plea of the Archakas that they

ware rendering sarvlcaa faithfully from generation to

generation and therefore they should not be ejected from

the entire lands. It has been a common practice in the

Southern States to grant inam lands to the Archakas as a

35 T .L .N .S * Temple V. Pattabirami 196? S .C . 761.

36 S .C .J . 1953 p. 283.

37 S .C .J , 1965(1) p. 6t*d.
 294

r«Bun«ration for th« sarviotts r«nd«r«d by thmm to tho

temple. The question whether the inaa land is granted In

favour of the temple or the Archaka oomes to be decided

on the basia of evidence of the Inan Registers, The

Court states :

"In a proceeding for the framing of a seh— e , relate

ing to temple, it may be permissible to take into accow t

tb« o l a l M . m o v l U not U g a l . ot th« toehato» to rw«aa-

able remuneration for their aenrices and expenses and to

make some provision for protecting their rights, such as

allowing them to remain in poaaession of the land and

appropriate the incotne. But where the Archaka actually

asaerta an adverse right in the face of an honest admi­

ssion of their predecessors-in-title, such conduct cannot

but be regarded as disentitling them from any claim

founded on equity, even i f , it were permissible for the

court such relief as can be given in proceedings for

3d
frsming s scheme*''^

In both the casea the Ooxirt has considered the inam

regiatex^ as having great evidentiary value in deciding

the position of the Archaka in relation to the inam

19
properties granted^ in a suit for ejectment*'^

3^ S ,C ,J , 1953 P* 2d3, Italics lalne.

39 Under the provision of Madras Hindu Heligious

Endowments Act, 1927*
 295

Pharma<arta

In South India w« often coma acroaa tha ofl'ica o£

Dharmakarta of a ta»pla or an andowaant. Though thia

offioa appaara analogoua to that of a Shabalt or/and a

Hahant, thera ara some Important diatlnetiona.

Dharaalcarta ia meraXy a holder of an offiea In an

ordinary honorary oapacity. Ha haa no baneflclal Intareati

whataoaver, in the endowment and la not entitled to emolu­

ments and haa no rights and priYlleges with refor«inoe to

the distribution of the income of the endowment. He la a

trustee for the carrying out of or executing truata whereby

apaoiflc purposes such aa daily worship and the periodical

ceremoniee and festivals| etc* In tamplea are to be carried

out* Ha is a manager of a temple and by virtue of thia

office I ha becomes the administrator of the property

attached to the temple. He la entitled to represent the

idol and posseaaea and manages the properties of the idol

even though they are not vested In him* In this capacity,

he has the right to sue in respect of the properties on

behalf of the idol but he cannot treat these properties aa

exclusively belonging to him. The Privy Council describes

this office as followa:

**A Oharmalcarta is literally, and no more than, the

manager of a charity, and hia rights apart, it may be in

certain circumstances, from the question of peraonal aupport,

ere never in a higher legal category than that of a mere

 296

tru8t««* Th« position of Oharsaicarta is not that of a

3h«bait of a religious institution or of ths hsad of a

^tt. These functionaries haye a much higher right with

larger powers of dispoael and administration and they have

LO
a personal interest of a beneficial character.**^

Mature of the Office of Dharmalcarta

Of and large I the office of the Dharmakarta is heredi­

tary and in a particular c&se the nature of the office is

to be decided with reference to the evidence presented in

the sane. It has been obseryed by the Courts ttiat this

practice of hereditary office of Dhanaakarta is well

recognised by the custom operating in Southern (particularly

in Madras State] states and this practice itself is

primarily ^responsible for the numerous esses of waste and

misappropriation of these endowments'.^^ In the case of

small temples the Pujari acts in the capacity of a trustee

or Dharmakarta.

The Supreme Court of India, in Abdul Kayum V, All

Bhai,^^ has maintained that 'though Section 1 of the Indian

Trusts Act makes the provisions of the Act inapplicable to

religious and charitable endowments» yet (some)^^ sections

KO Sreenivasaohariar V. Kvalappa Mudaliar, 1922, P .O . 325.

ifri Bidya Oourango Sahu V« Sudevi Mate kO Had. 6 1 2 t 32

M .t .J . 597.

k2 3 .C .J . 1962 I , p. 73.

43 For examples Sections 15t 27, 46 , 47 ate. of the

Indian Trusts Act.
 297

•mbody nothing more or 1«8S than tho prinoipXea which

fcanarally govern a fudloiary office like tha tr u a ta e 'a .'

Tha aquit&bla prinoiplaa eontainad in thia Act heva bean

uauaXly adopted by the Courta in India as principles

applicable to religious as well as secular truata*

It ia with reference to theae Sections that the

powers of a Truatee or a Dhanukarta can be analyaad and

they are aa followss

a) A trustee is bound to deal with the trust property

aa carefully as a man of ordinary prudence would deal with

such property i f it were his own, and in the absence of

a contract to the contraryi a trustee so dealing is not

responsible for the losa, destruction or deterioration of

LL
the trust property*^ A trustee cannot use the trust

property for his private personal benefit.

b) The trustees cannot transfer their duties to

others unless the trust deed eategorically provides for

auch a transfer.

c) A trustee cannot sell, lease, alienate the right

of management. Similarly, the office cannot be sold in

execution of a decree.

d) A trustee who uses the trust money for his private

business, is liable to pay compound interest on the said

sum. I f the trustee fails to invest the trust money which

i»4 Section 15 of the Indian trusts Act.

 29$

h« ought to invested | or there are no special circum*

stances in the ease, he Is charged simple interest at the

rate of 4 par cent per annum«^^

e) A trustee cannot act in such a manner as to

injure the inter<;i8t8 of the institution. He cannoti in

this conneotiont corruptly, arbitrarily, or wantonly

depart from the ordinary course of procedure in regard to

essential or ivportant matters connected with the insti­

tution* I f he does so, the courts are bound to restrain

hia from doing so* Such a departure on the part of the

trustee amounts to a breach of legal duty incumbent on him*

It is not in the power of the trustee to alter the purpose

for which the trust was founded or established* It is the

duty of the trustee to maintain the customary usage of the

institution*^^

liemoTal of a Dharnakarte or a Trustee

It has been found that though the Dharmakarta or

Pujari is merely a trustee, they have been considering

themselves the owners of the property of temples and there­

fore the courts have been comparatively liberal in inter*

preting their power of removing the trustees* The right

of the courts to remove the trustees has been very well

45 Hukum Chand V* Fulchend 196$ S.C* p* 1692.

46 VardaChari
Vardachari, The ^ w of Hindu Religious and Charitable
lindownents at pp . 1 84 - 3 5.
 299

r«cognlftod but they do not apply tha drastic ramady of

raaovlng a trustea unless the action of the trustee onounts

to positive dishonesty or deliberate oisappropriatiisi of

trust funds} but i f the courts are satisfied that the

aotion of a trustee was a mere mistake and not a deliberate

act I the courts, instead of renoving him may sugj^est a

scheme for supervision and control.

Pandas

In slmost all the religious places of worship of the

Hindus in India such as 6anaras« Allahabad (Prayag), Gaya,

Hardwar, Badrinath, etc.^*^ we cone across Brahisins who are

icnown as Pandas. Pandas are an age-old institution in

these centres and they help the pilgrims in conducting the

worship. *7he Pandas are not temple priests in the proper

sense of the expression and have nothing to do with the

regular worship of the idol which is carried on by the

dhebait, the High Priest or the manager as the case may be.

Xheir chief duty consists in acting as guides or escorts

of the pilgrims and tatcing them to the various places of

worship, acquainting them at the same time with detailed

information regarding the reputed sanctity of each. They

look after the comforts of the pilgrims and make arrange-

mente for their lodging and board and also act as Tirth

47 In Maharashtra. Psndharpur is a holy place of the

hindus and in this place we come across ’ Qadwas* who
perform similar fxmctions*
 300

Purohitsi in which oapaelty th«y assist th«^pilgrims in

the perfomanos of various acts of worship as distin­

guished frojB th« general worship which is conducted by or

on behalf of the testple a u t h o r i t i e s .'^

3oae legislative enactaents of State Qovernaents

have included the office of Pandas in the definition of

an Arohaica and therefore this office has also come to be

regulated by the Cooaiaaioner and similar officials under

the Act«^^ fiadrinath is a famous place of worship of the

Hindus and the chief priest of this temple was Known as

Rawali who looked after the affairs of the temple under

the supervision of the Tehri Durbar. The temple was being

managed under the scheme framed by the Commissioner of the

Kumaon division in 1899* Under this scheme, the Aawal was

the sole trustee of the temple and he worked under the

Tehri Durbar. The friction between the trustee Rawal and

the Tehri Durbar resulted in a public agitation and conse«

quent to the demand by the people of Uttar Pradesh, the

Oovemment of that province enacted in 1939 f The Sri

Badrinath Temple Act to remove the defects in the existing

scheme of management. The main provision of the Act was

that the duties of the trustee Rawal were confined to the

Narhari Shastri Y. Shri Badrinath Temple Committee

3 . C . J . 1992 p. 310.

k9 Sec. 2 Andhra Pradesh Charitable k Ulxvlu Religious

Institutions and Endowments Aet| 1966.
 301

pri«stl 7 f «nd th« sacul&r Kan&g«aant was placad in th«

hands of a Cosanittaa which partly oonaiatad of nominated

and partly of elaotad mambara. Tha traditional control

of tha Durbar was ratalnad and tha Govarnmant itsalf waa

aopowared to taka steps against tha oommittae In the event

of its failure or Bisnanaganeat.

the Oaoprayagi P a n d a s v h o olaitted their associa­

tion with the Badrinath Tenple from times lomefflorlal,

filed a suit against the Rawal arguing that he unlawfully

regulated the entry of the Pandas in the Badrinath Temple,

After the passing of the Badrlnath Temple Act referred to

above, the Committee was also impleaded in the suit. Under

the Aet a ll gifts made within the temple precincts were to

veat in the Temple C o m m i t t e e a n d the Committee had the

52
sole absolute right to regxilate^ the entry of persons in

the temple* The Civil Judge and later on the High Court of

the U*P* in appeal, held as valid the right of the Gomsdttee

to malce the rules Tor the entry of pandas in the temple

and also regarding the receiving of gifts by them in the

temple.

The Supreme Court had to decide two isauess

50 Deoprayagl Pandas normally get charge of pilgrims

coming from the plains and the Dlmrl Pandas act as
attendants to pilgrims fz*om the hillsides.
m

51 Section 3(b) Badrlnath Temple Act, 1939.

52 Section 25 Badrlnath Temple Act, 1939*

 302

1} Wh0th«r the Pandas oould accompany %h« yajmans

and assist thsm in ths Darshan and ths worship?

2] Whsthsr ths Pandas would havs ths rl^ht to

acespt within ths tsapls prselncts whatsver was paid by

ths pilgrims as gifts or prsssnts to thsm and not to ths

tSfflplS?

Ths Suprsms Oourt doss not spprovs ths approach

adoptsd by ths courts bslow in relation to ths main issues

involTsd. It points out that -

" Ones it is adaittsd that the tsapls is s public

Discs of worship of ths Hinrlus* ths right of sntrsncs into

ths tsmpXs for purposss of Darshan or worship is s r i ^

which flows from ths nature of ths institution itsslf> sad

for the acquisition of such rights, no custom or

USSKS nssd bs agssrtsd or proTsd* As ths Panda as w s U as

his client are both Hindu worshippers| there can be nothing

wrong in the ons*s sceompsnying ths other Inslds the temple

and subject to . . . t ths fact that ths pilgrim, being a

stranger to that spot, takes ths assistance of the Pandas

in the matter of Darshan or worship of ths deities or that

the Panda gets the remuneration from his clients for the

servicss hs renders» does not in any way affect ths legal

rights of sither of thsm. In law, it makss no diffsrsncs

whether one performs ths set of worship himsslf or is

aided or guidsd by another in the performance of them. If

 303

the Pandas claim any speci*^! rij?ht which Is not an.loyed

ordinarily br tha naabars of tha Hindu public t thay Vfould

undoubtadly have to astabliah auch rights on tha baais of

Cl
custom, usaga or otharwisa«"^^

Tha Supraaa Court thus admits tha right of Pandas

to anter the tanpla along with tha yajraans but at tha ssma

tiaa tha Court does not considar this right as uncondi­

tional. It states : '

"Tha right of antry into a public taapla Is howavr>

not an unregulated or unrastrictad right. It is opsa tm

tha trustees of a public temple to regulate tha tlas of

public visits and fix certain hours of the day during which
t
alone raeabers of the public would be allowed access to the

shrine. The public may also be denied access to eez*taln

particularly sacred parts of the teaple, e . g . , the inner

sanctuary or *Holy of the Holies' where the deity is

actually located.

The Court considera the temple authorities coi&petent

to make and enforce laws or rules to ensure good order and

55
decency of worship and prayent overcrowding in a temple.^''

The Supreme Court states :

53Supra n. 4^1 p. 317*

54

55 Ibid.
 304

tz*u« position, ^herefore^ ia that the plain­

t i f f * * right of entering the temple along with their

YeJaene it not e precarioue or a permigBive right depend*

ing for itg existenoe upon the arbitrary diecretion of the

temple authorities; it is a legal ri/.ht In the true eenae

of the expreseion but it can be exercised Buh.1ect to the

restrictions which the temple comlttee aav l«poae in good

faith for maintenance of order and decorum within the

temple ond for eaauring proper performance of customarr

worship,

The second point for consideration before the supreme

Court was to decide whether the Pandas were entitled to a

right to tskOp within the temple precinoti whatever is put

into their hands as gifts by their clients at the time of

worship. The trial court gave the plaintiffs a qualified

declarationi while the High ^ourt rejected the claim

altogether.

The Supreme Court, while rejecting the stand taken

by the High iourt| develops an elaborate argument* It

maintfiins that the gift which a pilgrim chooses to make in

the temple is entirely a voluntary act on his part and as

he could not be compelled to make the gift either in favour

of a panda or anybody else, there could, strictly speaking,

be no legal right in the plaintiff to receive any gift

from his client, which can be declared by law*

56 Ibid,
 305

Th« plaintiffs «rgu«d th«t| if th« plXgrime g Uoosq

t o m»k9 a n y g i f t s to th en » tbB ? « n p l e C o m m itte s o o u ld n o t

by 1 rW| prevent them from accepting the same and treat

such gifts as part of the temple property, and therefore«

the bye-law (d) of the Puja Bye-Laws is illegal nnd ultra

Tires* In this connection a reference was made to oex^ain

S7
texts from the Kedar Kanda'^' of Skanda Puran according to

which *it is a religious duty enjoined by the Hindu scrip*

tures that a worshipper who gees to Badrikashram should

make gifts to Brahmins after the Oarshan of the iGol and

after offerings had been made to itt

The orthodox Hindu idea of offering gifts to the

Brahmans is not disputed by the Supreme Court but according

to it the main question imder dispute is whether the Temple

Gomoittee was empowered to make a rule whereby all persons

other than those, whose rights are specifically recognised

are disabled from receiving gifts within the precincts of

the temple.

57 **After having bathed in the Qangesi in the I^arda

Hrada ('Cund) and others (Hradas)* one (worshipper) shall
bathe In the Vahni Tirth (Tapta JCunda) after performing
the obligatory duties and with his mind kept under control}
he shall go into the temple of Badrinath with his mind
concentrated on 3hri Hari* He shall make o ffe rin g to the
best of his capj^eity and with utmost devotion* Then he
shall look at all-pervading Karayan from crown to foot,
and there make I'ifts to Brahmins to ^he best of his
capacity* Thereafter, he shall do Pradakshlna (go round)
with the utmost devotion**'

Skanda Purana, Kedara Kanda, Badri Mahatma,

Chapter V I, Verses 46-49i quoted I b i d ,* p* 31^*
 306

According t;o th« Supreme Court it la perfectly true

thfit xinder the general law, nobody can be prevented from

accepting the g ift , which another person may be inclined

to sake in his favour, and it ia inmiaterial in auch caaes

at what place the gift ia actually made« The High Court

was of the view that Badrinath tenple Act itaelf clearly

abrogated the rights of the donee in regard to the gifts

made to him within the temple and aa auch gifts coiae within

the definition of endowment given in the act, the Temple

Conmittae geta a controlling hand to regulate the sane.

Under Section 4 of the Badrinath Temple Act, a gift

doea not vest in the temple at all unleaa it is made for

the benefit of the temple or for the convenience, comfort

or benefit of the pilgrim. The reapondent had claimed that

the gift intended for the personal benefit of the Pandas

cannot vest in the temple and this is quite in accordance

with the existing principles of Hindu Law*

The Supreme Court does not accept this contention

of the respondents and says i

"I f a legislation wants to tafee away the proprietory

right whioh a person acquires under the ordinary law, it

must express Its intention In clear and unambiguous terms«

We are unable to spell out any such intention out of the

language used in Sec« 3(b) of the Badrinath Act. It may

be that the wording of this section is defective and that

there is apparent conflict between the provision of this

 307

8ubs«etion and that of ieo.i» of tho Act. There la nothing

in the srl Badrlnath Temple Act, i«hi.ch lays down that «

gift made to any person inside the temple and intended for

the benefit of that person ahall not belong to him.*'^

Section 25 of the Badrlnath Temple Act, empowers the

Tenple Committee to make bye-lawa not inconsistent with

the Act or the rules made thereunder or any other law for

a Tariety of purposes mentioned In the different clauses

of the Section 25 of the Act* These clauses are -

(a) The maintenance of order within the temple or

inside the temple and regulating the entry of person

therein.

(n) The performance of duties prescribed in Sec.23*^^

I

At this stage, the Court girea a very graphic

account of the general atmosphere that one usually experi­

ences in almost all places of religious worship In India.

*It is a thing, too well known, that in many of the Hindu

temples of renown in India, the pilgrims after their worship

is finished or even before that, are literally besieged by

an army of m^dicants including many Sadhus or ascetics,

59 Section 23 of the Act lays down the duties of the

Cowslttee and sub-section 9 of this section prescribes
the duty of the committee to do all such things as may be
oonduolTe and incidental to the effective management of
the temple and endowments and the conYenience of the
pilgrims.
 30d

th« b«gp;ln€ Brahmans who abound in all aaorad places and

even people who are associated with various duties in the

temple its e lf. The presence of large number of such

pereons who certainly do not come Inside the temple as

worshippersi is positively detrimental to the maintenance

of good orderi decency and solemnity in the temple and not

unoften it is a source of very great annoyance and dis-*

comfort to the pilgrims themselves.*

The Supreme Court believes that one of the objects

of the Temple Committee to frame the abovementioned bye*

laws was to 'prevent this religious mendicancy showing

Itself in an unseemly manner within the precincts of the

temple itself.^ Therefore, Pooje bye-law is consi*

dered as perfectly legitimate, and the Temple Cominlttee

was competent to enact this bye-law. The Court considers

this regulation as Intended to prevent overorowdlng within

the temple and to ensure order, decency and reverent

behavioxir on the part of those who enter into it . The

Court concludes t

*^he gift intended for the Pandas can, under no

circumstance, vest In the temple, but such regulation of

60 Puja Bye-law i provided that the permanent employees

of the temple should not receive or solicit for any
remuneration reward or Dakshina in any form from the
pilgrims* Similarly Bye-law 15 prevented the Sadhus or
beggars to sit and beg for alms within the temple.
 309

this ehar«ct«r could eertainlj b« d«on«d to b« necees&ry

ag conducive to effici«nt managwnent of th« templ« and

•ndowmant8» the convenience of the pilgriias and the main­

tenance of order and decent behaviour within the temple

precincts.

This Judgment is significant because It has struck

a golden mean by protecting the right of the Pandas to

accompany the Yajman inside the temple but at the seme time

it has made the behaviour of the Pandas subject to the bye*

laws made by the Temple Committee with a view to protecting

the right of the pilgrim to enjoy quiet atmosphere which

is necesenry and to save him from the grabbing clutches of

the mendicants who haunt the pilgrims spoiling their mental

peace and disturbing the sanctity of religious places of

worship.

aorshlppers

Under the Hindu Religious £ndowments, the worshippers

do claim certain privileges and rights because they are

considered the spiritual beneficiaries of institutions such

as temples* It may, here, be noted that the temples were

Intended for the worship of people belonging to all the

four castes and even the out-castes were not wholly left

out of the benefits of this worship even though their mode

of worship and the place from which they could worship were

61 3upra n. p» 321.
 310

62 *
subject to restrictions. It has already been noted that:

The true beneficiaries of relljclom endowments

•r e ndt the Idols but the worshippers and thst the purpose

of endowaient Is the maintenance of that worship for the

benefit of worshippere«"^^

It Is better to summarise the main points about the

rights of worshippers noted by us above in another context.

They ares

1} In the oaae of a public temple, the worshippers

have an unrestricted but regulated right of offering

worship* The regulation nay be about the hours of worship

and the mode of worship,

2} In the case of a private denominational temple|

established by and for the worship of members of a

particular sect, persons belonging to other sects cannot

olalB entry and worship as a matter of right*^^

3) There is no such thing as unregulated and un­

restricted right of entry in a public temple or other

religious institution, for persons who are not connected

with the spiritual functions t h e r e o f .^

62 Oopsla i*ooppanar V. Subramanya Ayyer 27 M . L . J . 253*

63 Deotci Nandan V. Murlidhar 1957 3.C .13 3 (Italics minej.

6V Oomoissioner V. L.T.Swaalar 1954 S.C* 2^2.

65 Anandrao Bhilcaji Phadke V. Shankar D aji. 7 Bom* 323*

66 Commissioner H*R«C*B;, V* L.T.Swamlar 1954 2d2*

 311

4) The templa authorities can make rules for the

entry of worshippers and others for preventing overcrowd­

ing and maitxtalziing ord<»r In the preolnots of the tenple,^^

5) There is a right in every community to take out

religious procession vlth its appropriate obsBrvances.

This is an inherent right and does not depend on the proof

of any custom or long standing practice; provided it does

not infringe the legal rights of others*

The Legal Position of the Worshipper

Kven though the worshippers have the rir;hts and

privileges mentioned above, the court w ill not decide

questions of religious rites or oei*emonleS| nor will the

court pronounce on any religious doctrines unless it is

necessary to do so in order to determine rights to property*

This is so becf^use the protection of the law in religious

mstters is confined to the protection of religious property

or religious office* The legal position Is that the

worshipper in a Hindu temple Is entitled, under certain

circumstances, to bring fi suit for a declaration that the

alienation of temple properties by the Shebalt is Invalid

and not binding on the temple.

In Hanaraghava Heddy T* Seshu Heddl,^^ the Supreme

67 I4arharl Shastrl V. Badrlnath Temple Committee 1952,

S . C . R . ^49: 5*C.J* 310*

6^ Jankl Prasad V. Karamat Hussain 1931 '^ll* 674*

69 1967 3*C. 437.

 312

Court h«ld that If a Shsbalt has improperly alienated

trust property, a suit can be brouRht by any person

interested for a declaration that such alienation is not

binding upon the deity, but no decree for recovery of

poaseaaion can be made in such a suit unless the plaintiff

in the suit has the present right to the possession. When

the worshipper has to file a suit for the removal of a

Shebait, the worshipper is pemitted to represent the idol

70
and to recover the property for the idol*'

The position of the Supreme Court is very vfell

reflected in Biahwanath and another V« Sri ThSKur iiadha

Ballabhaji and others*^^ In this case, the suit was filed

on behalf of the idol for recovery from the alienee of

its property, alienated by its manager acting adversely

to its interest and therefore it w-

js a suit by the idol

to enforce its private right*

The Court refers to the various decisions of the

72
High Courts and the Privy Council' and arrives at some

cardinal conceptst

1) An idol of a Hindu Temple is a Juridical person,

70 bishwanath V. Hadha Ballabhji 1967 IO 44 ,

3 . C . J . 1967 p . 331.

71 Ib id .

72 Maharaja Jagnindra Nath Roy Bahadur V. Hani Hemant

Kumari Oebi (1904) I..R. 31 I . i . 203, 209-10.

Also see Ganapathi Iyer, Hindu and Mohaaiedan undow*

ments, 2nd i!^n», p* 226.
 313

2) Wh*n thtre Is a Sh«balt| ordinarily no person

othsr than ths Shsbslt can roprssent ths idol,

3) Worshippers of the idol are its beneficiaries,

though only in a eplritual sense. These worshippers, who

go in only for ths purpose of devotion have, according to

Hindu Law and religion, a greater and deeper interest in

temples than mere servants who serve there for some

pecuniairy advantage.

The main q u e s t i^ in this connection is , can such

a person, namely worshipper, represent the idol when the

Shebait acts adversely to its interest &nd fails to take

action to safeguard its interest. The Court maintains

that on principle it does not have any Justification for

denying such a right to the worshipper (vis. the right of

representing the idol when the Shebalt fails to represent

the idol and protect its Interest}•

The Supreme Court considers an idol in the position

of a minor. When the person representing it leaves it in

s lurch, a person Interested in the worship of the idol

can certainly be clothed with an ad hoc power of representa­

tion to protect its interests. A c c o r d i n g to the court

It is a pragmatic but a legal solution to a difficult

situation. I f a shebalt, who transferred the property,

73 Italics mine.
 314

can only bring • suit for recovery^ in most of the oeaes

It w ill b« an Indirect approval of the dereliction of tha

Shabait*8 duty, bacausa i^ra often than not ha will not

admit his default and taka steps to recoTar the property.

If on the other hand it is held that a worshipper can file

a suit only for the raaovsl of 3habait and for the appoint­

ment of another in order to enable him to take steps to

recover the property, such a procedure would be lengthy

and a coaplicated one and the Interest of the idol may

Irreparably suffer. That is why, the Supreme Court admits,

various decisions in the past have permitted a worshipper

in such circumstances to represent the idol and to recover

the property for the idol# In these c a s e s i t has been

held that worshippers may file a suit praying for possession

of a property on behalf of the endowment. The Supreme

Court also refers to some cases where it was held that apart

from a Shebait, under some oircumstancea the idol can be

represented by disinterested persons. The Supreme Court

also refers to the position adopted by B. K. Mukherjeei

74 tiadabai iCom Chimnaji Sail ? . Chamnaji Bin Hamji (1^7^)

I . L . R . 3 Bom. 27«

Sri Aadba Kriahnaji T. Uameahwar Prasad Singh

A . I . R . 1934 Pat. 5S4.

Mannohan Haidar V. Dibbendu Prasad Roy Chaudhary

A.l.R. 1949 0«1 . 199.
All these cases are quoted by the Supreme Court in
Bishwanath Y. T.R.BallabhJi. S . G . J . (1967) I I , p« 335.
 315

”1) An idol ! • a jurlstle parson in whoa th« titl«

of th« properties of the endowment vests. But it is only

in an ideal sense that the idol is the owner. It has to

act through a human a^eney, and that agency is the Shebait,

who iS| in law| the person entitled to take proceedings

on its behalf. The personality of the idol night be said

to be aerged in that of the Shebait*

2) Where I however^ the shebait refuses to act for

the idol or where the suit is to challenge an act of the

Shebait hiiuelf as prejudicial to the interests of the

idol, then there must be some other agency which must have

the right to act for the idol* The law accordingly

recognises a right in persons interested in the endowment

7*
to take proceedings on behalf of the idol*"

the Supreme Coxirt fully agrees with this position

and says that this view is Justified by reason as well as

by decisions* The conclusion of the Supreme Court was

that the worshipper or any other beneficiary of the endow*

ment of a religious institution like a Mutt or temple can

file a suit for the recovery of the alienated properties»

i f the shebait has failed to protect the properties and

the interests of the endowment. It may here be mentioned

Tf%
that the appellants had referred to some decisions where

75 The Hindu liBw of Religious and Charitable Trusts,

2nd &dn* at p . 249.

76 Kunj Behari Chandra ?• Sri Sri Shayaa Ghand Thalcur

A.I.K* 193^ Pat. 394* Artatran Alekhagadi brahma V.
Sudersan Miahopatra A . l . R . 1954 Orissa 11.
 3X6

it w«8 h«ld that In eAs« of « public •ndownwntp « part of

the trust property which had been ^llensted by the Shebait

or lost in eonseouenee of his action could be recovered

only in a suit Instituted by a Shebait. The Supreme Court

eatefcorically rejects this Tiew as incorrect law on this

subject.

Heliglous Konours in a Temple

**Xt nay even be a saerilege to claim a right of

•

precedence in the presence of Almighty Ood, for all go

before him as humble devotees to earn his blessings and

not to assert their self-importance or claim their right

of preferential treatment. 3ut « century of case law in

the country has recognised certain rights of different

grades of devotees and they and their innumerable followers

began to cherish them or even to fight for them In civil

and criminal courts.”

This is what the Supreme Court said in Sri Sinna

Ramanuja Jeer T. Sri Ranga ^m anuj J e e r t ^ while commenting

on the problem of honours claimed by the worshippers or

devotees in the temples. It is customary in various

temples in India to bestow honours on the worshippers after

the worshipt in the form of distrlbutioa of Theertam,

Tbulesi, satari, Vinlyogam, etc. In Vaisnav tei^les it is

the practice of placing the impression of the feet of the

77 3.C.J. 1962(1) p. 17.

 317

Oalty upon th« h«ad or shoulders of th« d«vote«. Another

ouBtoB Is th« distrlbation of tb« leavings of th« food

offered to the Deity to the distinguished devotee. In

sOBie temples the sandal paste of the feet of the Deity t

and the leavings of the food and the garland worn by the

God are given as marks of grace. SometiBes these a r e

considered by the devotees as honours or ri.'hts and these

e la iA s have provoked c o n f l i c t s *

One such conflict arose in case of Athinathalwar

temple at /4.war Tirunagari in rirunelvelli District. In

the 19th century, there were disputes among Jeers as

«
regards ths order of priority in which certain honours

were to be bestowed anong the said Jeers when they attended

the temple for worship. Kaeh of the Jeers is allotted a

particular place in the Ghoshti and a certain order of

precedence is observed in relation to them. This order of

precedence was the source of constant conflicts among the

religious heads. Consequently| the Madras Hindu Heligious

Board intervened and decided the order of precedence

inter se them to settle the dispute between them. Xhe

plaintiff approached the court to establish his right of

precedence to receive the Theertham as forming a part of

the emoluments of his office. The High Court rejected the

claim of the appellant and hence the appeal to the Supreme

Court.

The Supreme Court admits the customary nature of the

honours in the t«mpl«0 | and Instead of rooonsiderlns th«

question of honours on first prinoipXss only sunrsys ths

law on ths subjsct %rith a view to olarifylng the legsl

position in the netter*

Justice 3eotlandt in Striaan 3adsgopa T. Kristna

Tatachariar^^ had held i

"Such honours (giving of garlands, prasadami

theerthan, e t c . } and emolments cannot in any respect be

considered as renunar»tion for duties or &inlstrations

performed by the plaintiff in the secular affairs or

religious services of the Pagoda.”

The aasie principle was applied by the Court in 3rl

7Q
itangaohariar V, Rangasame Buttaohari'^ and stated that the

court must protect the plaintiffs in the enjoyment of the

office by declaring what honour they were entitled to.

Justice Sadaahiv Aiyar was very critical of such

practices. He said s

"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 eaolumentai In other words« can honours

be legally claimed by anybody as receivable by him in a

tenple? When a trustee chooses to parade temple elephants

7^ 1^63 ! • K«H«C,R. 301 at 3O6 .

79 ’ 1909 I . L . a . 32 Mad, 291 ,

 319

end dancing glrXs btfors a high official or any othar

persons gives hixa praftademsi eto«; he does it in oirder to

show *honours* to that person and vhen he does this without

prejudice to the conduct of the rituals and ceremonies in

the temple I he always says that the God of the temple

hiaself condescends to treat the o fficial or other persons

as God*8 guest and shows him the honours* Such persons

to whoa respect is shown cannot in wy opinion claia such

honours as a le/tal rights but as a favour shown by the

temple Deity. Such honours in the strict eyes of the

sashtres cannot be called honours at all but as doles

condescendingly given by the temple deity as a favour*

this clearly shows that a claim for the honour, there*

fore, to be shown in the presence of Sod is a sinful claim

en
and is illegal and unshastraic***

This observation of Justice Aiyar was particularly

characteristic of his reformatory approach towards Hinduism

where he wanted to remove the cobweb that shrouded the

Hindu religion by superstitious ignorance and perveirted

impoeition.^^

On the basis of this review of the ease law on the

subject the Supreme Couirt comes to the conclusion that a

party claiming an honour like the first theerthamy etc* has

80 Athan Sadagopachariar 7* Klayavalli 3rlnivasachariar

(1913) 289 at 301. Xtoi-Cc-S OMj.'rve,

81 Supra n. 77# p. 23 .
 320

to prove that h« la an offlc* bearer of the temple and

that he haa ^een receiving the first theerthaa in the

Qhoati but he has also to prove that the receipt of the

first theerthan has become an integral part of the ritual

to be performed by him es an office holder. There cannot

be fin independent office as theerthkar* Even if the

theerthaa is given or other honours »re sho%m in a parti-

culhv order to a person holding an office, it does not

necessarily follow that the said honours are s part of the

remuneration attached to the office, but it is a question

of faot to be ascertained on the evidence whether the said

honours are attached to the office as an intejcral part of

the ritual or only shown to hla as a mark of respect on the

d2
occasion of his visit t f ^the temple.

Kelit^lous Procession

In almost all x*eligious coosaunitiesf it is customary

to take out processions on various religious occasions and

among the Hindus the practice of taking the Deity in proce­

ssion is very common, aometimes the route followed by the

procession goes by the Mosques where the Muslims offer

their prayers. The processions are very usually marked

by a gay atmosphere, loud music by trumpets and similar

accompaniments. The Muslim community offering prayers in

the Mosques has often complained that these processions

^2 Ibid., at pp. 25-26.

 321

har0 dlstiirbed thalr prayars and thiu hava violated thalr

fundaaantal right of raliglouB praotioa naaaly of offarlng

prayara in a quiat atmoaphare. Hindu8| on tha othar hend,

hava elalmed that it la their fundanantal right to taka

out such procasaiona* Each coosBunity haa Taz*y often bean

very aeaartiTa of ita right and oonaaquantly there hava

been claahas, aomatimeo even violent• Thia haa been a

eontinuoua aource of bickaringa anong tha two commmitiea

and haa threatened public order. The contending partiea

haya approached the eourta to claim protection for thoir

fundaaantal righta and tha courta have had to dacida

whether the Hlndua (or vrorahippera of any religion for that

matter} have the right to taka out religioua oroceaaions.

One auch referenca was nade to tha Suprette Court la

3haikh Piru Uux V. ICalandi F atil.^^ This appeal by special

leave waa directed against the Judgnent of the Orissa liigh

Court in a second appeal whereby the High Court affinsed

the decree and order paaaed by the flrat additional aub*

Judge I Cuttack. Tha respondents in this case prayed for a

declaration that the Hindu villagera of the two villagesi

Alkund and Huagaon had the right to take out the religious

and non-religious processions with appropriate music along

the District and village roads including thoae by the aide

of the defendant’ s Moaque without any Interruptions wherever

S.C.J. 1970 II» p. 16S.

 322

th« Plaintiff*8 eonmunlty chose to taking out without

rastrictlon and that tha dafandenta* tha Mualiv Yillagara,
ba panaanantly rafrainad from interfarlng with tha
plaintiff's lawful procaasion.^^

Tha Muslim oowaunityi on tha other hand, arguad that

thay had inharant, natural and fundamantal right to offer
thair prayara in eoaplata quiat without any intarfarancat
whatsoavar, and thay wera antitlad to oppoaa rausic baing
playad naar about tha Mosqua in order to naintain tha
ealmnass in as sueh as tha muaic or tha Sankirtan raally
diaturbad tha calanaaa which was absolutaly neceasary for
ooneantration of tha mind in prayar. Tha dafaadanta also
raliad upon a coapromiaa allagad to hava baan arrivad at
oatwaan tha two ooesaunities in 1931* It was pointad o\it
that in purauanca of the cofflpromiee two pillara had bean
put up by the dafandants on both sides of tha Mosque and
the pillar carries tha Inscriptioni Baja Bajaiba Nishidha
(Playing nuaio is prohibited).

Tha trial court held that the righta of tha plaintiffs

to take out the processions with the accompaniment of music
was not absolute and the plaintiff could only exarcise the
same on all occaaiona except near tha Hosque at the tine of
congregational prayer of tha defendant connunity according
to tha Islamic religion and subject to other lawful orders

Ibid,, p. 169.
 323

or dir«6tlona giv«n hj th« aaglstrat^ or polic* Tor prevent*

tfc
Ing breaoh of pe«oe or regulating traffic# The Court alto
held that the Hindu ooauaunlty was acting according to the
terms of the coBproulse effected In 1931» ao as not to
disturb the religious aentliients of the Muslla coamunlty
by playing auslc before their uosques while going in proce­
ssion. The court decl£ired that the Hindus have a right to
take out both religious and non-rellglous processions with
the accompaniaent of proper music subject to restrictions,
so as not to disturb the Muslin cooiaunity in &heir offering
of prayers and that the right was also subject to any
lawful order of the aaglstrate or the police preventing
breaches of peace or obstructing the highways and such
other statutory provisions for regulating traffic* On
sppeal, the First Additional 3ub-Judge also held the
compromise as binding and modifying the declaration nain-
talned that the Hindu community had agreed to stop only
drum-besting near the said two aosques* On further appeali
the High Court held that the restrictive order of the lower
sppellate court directing the Hindu community to take out
procession with *low sound music except drum beating* was
not Justified and was liable to be set aside. The High
Court concluded that the compromise settled by the leaders
of both communities was not binding on the Hindu community.

«5 Ibid,, pp, 169-70.

 324

Th« SupruM Court oont«nd« that the ooiapromlse^^ 1« signed

by « nuaber of persons but there la no Indication that

they r e p r e s e n t e d the tvo G o n m u n ltle s * 'I t may b e that

these persons who signed the eonpr o t s i s e , were important

persons in the comniunitles and it nay be that both oonunu-

nities should act a o o o r d i n g to the eoapromise effected by

the 80 called Inportant persons. But in la w it d o e s not

debar the parties fr<Ma asserting their legal rights in a

c iY il court. The defendants before the oupreme Court had

referred to a s i m i l a r conpromise a r r i v e d at In a s i m i l a r

case ' and expected the Court to assume the coapromise a s

binding on parties in the instant suit. The Supreme

Court I however, does not agree with the findings of the

court in Babu dam ^ingh V. Subhan I'to c h l, t h e c a s e relied

upon by the defendants.

36 The compromise was "neither we« the Kusaluans nor

we the Hindus can at nny time in future create any
disturbance towards each other’ s religion and will deal
with each other as before. We will not create any
disturbance in any function of either party and will not
create branch, of peace with each other emon|!;0t ourselves.
... There Is no apprehension of breach of peace as we
the Hindus and the Kusalmans have amicably settled the
matter nor will there occur any breach of peace in future.
So we both parties having settled the matter amicably,
hereoy submit this petition and pray that the c&se be
disposed of in terms of this cosrproraise petition.** (Quoted
I b i d . , p. 171*

^7 Bsbu Ram Singh T. Subhan Mochi A.I.fi. 1920 All. 519*

H Shaikh Plru Bax V. iCalandi Patll S . C . J . 1970 XI

pp. 170-71.
 325

Th« 3upr«i« Court follows the daoision of tho Prlyj

Council in Manzur Hasvn'V, Muhenmad and dlamlsflas

tha appaal by saying *^hat tha plalntiffa bava a right to

taka out both rall^ioua and non*raligiou8 proeeaalona Kith

tha accompaniment of suaic on tha higlMfiys of Aliomd and

Nuagaon Vlllegea (1) subject to tha ordar of tha local

authoritiaa ragulatin#; tha traffic and (2) subject to tha

magiatrata^s directions under any law for tha tiae being

in force and the rights of the people.*

Conclusion

Shebaitflhip carries with Itself cartPin spiritual as

well ea temporal dutiaa regarding the idol of which the

Shebait is considered a custodian or a guardian* In this

capacity he enjoys iaportant powers, with a Tiew to protect­

ing the interests of the idol as well as the trust institu­

tion* The courts have considered it their duty to see that

the interests of tt-^e public trusts and the Interests of

those for whose benefit they exist are properly aafeguarded.

A Shebait who is guilty of misconduct or breach of trust

and who faila to perform hia functions faithfully, can

Justifiably be removed through proper proceedings* What

is true of shebait is eoually true of Pujari, Archalca, etc.

The courts )tave recognised the right of a female to succeed

69 (1925) 52 I.A. 61i M.L.J. 23 ( r . C j .

 326

to prl«stly ofttem provided th« rallglous duties prohibited

by the Shaetras are performed by a competent substitute.

In an ii^ortant decision the Supreae Court has

Justified the power of the State to make laws regarding
behaviour of the Pandas with a view to maintaining order
and decorum in the temples and ensure order» decency end
reverent behaviour on the part of those who enter into
these temples.

The courts have considered worshippers as the real

spiritual beneficiaries of the temples having unrestricted
but a regulated right of offering worship in public temples.
It has been pointed out that worshippers can represent the
idol and recover the properties of the Institution when
the dhebait has acted adversely to the interests of the
idol and has failed to safeguard its properties. The
courts have also recognised the right of the worshippers
to take oat religious processions provided such processions
do not violate the normal rules of public order, health
and Borslity.

It may be pointed out that while the courts have

recognised the traditional rights and responsibilities of
the abovementioned religious office bearers, they have
considered them subject to the interests of the institution
which they represent or benefit from and also subject to
the interests of public order, morality and health*