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PETITIONER: BHOGARAJU VENKATA JANAKIRAMA RAO

       Vs.

RESPONDENT: THE  BOARD  OF COMMISSIONERS FOR HINDU  RELIGIOUS  ENDOWMENT

DATE OF JUDGMENT: 31/10/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. MUDHOLKAR, J.R.

CITATION:  1965 AIR  231            1964 SCR  (5) 270

ACT: Code of Civil Procedure, 1908 (Act 5 of 1908), s. 2(2)-Order passed on application under s. 57(9) modifying scheme framed under  s. 92 of the Code of Civil Procedure-Whether  decree- Point   not  raised  in  pleadings-Effect  of-Madras   Hindu Religious Endowment Act, 1927, s. 57(9).

HEADNOTE: A suit was filed by certain worshipers of a temple under  s. 92  of  the Code of Civil Procedure for the  settling  of  a scheme  for its proper management and  administration.   The scheme was framed by the subordinate Judge and the same  was confirmed by the High Court. On  August  4,  1947 the Board  of  Commissioners  of  Hindu Religious Endowments filed a petition under s. 57(9) of  the Madras Hindu Religious Endowments Act. 1927 in the Court  of the District Judge for the modification of the scheme.   Out of  the  many  issues raised, two of  them  related  to  the remuneration  allowable  to  Archakas and  the  Karnam,  two classes  of temple officials.  The decision of the  District Judge  was  that  no  case was  made  out  for  varying  the remuneration  payable  to  Archakas  and  Karnam  under  the original  scheme.  In appeal, the High  Court  substantially modified  the provisions regarding remuneration.   The  High Court  held  that the Archakas should be entitled  to  claim only  half share in the Dibbi collections and to  a  similar share  in the pumpkins and rice offered at the time  of  the dedication  of  a  calf  to  the  deity  and  to  no   other perquisites or emoluments.  As regards the Karnam, the  High Court held that he should be entitled to a salary of Rs.  25 per  mensum.   He might appoint a deputy in  his  place  who should be a person acceptable to the executive officer.  The Karnam  was  not to get any share in the  Dibbi  collections even  if  he chose to perform his  duties  personally.   The appellants came to this Court after obtaining a  certificate from the High Court. The  first contention raised by the appellants was  that  as the  present proceedings originated on an application  filed under s. 57(9) of the Madras Hindu Religious Endowments Act,

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1927,  in  the  absence  of  any  provision  for  an  appeal conferred  on the aggrieved party by the Act, the appeal  to the High Court was incompetent and hence the changes made by the  High  Court  were without jurisdiction.   It  was  also contended that there was no justification 271 for  interfering with the items of remuneration,  emoluments and  perquisites  sanctioned by custom and usage  which  had been recognised after contest by decrees of courts. Held:The appeal filed by the Board of Commissioners  it the  High Court against the order of the District Judge  was competent  and the High Court had jurisdiction to  entertain and  deal with the, appeal.  A scheme framed under s. 92  of the  Code of Civil Procedure which is deemed to be a  scheme under  s. 75 of the Madras Hindu Religious  Endowments  Act, 1927 is one which is framed in a suit and the scheme  itself is  a part of the decree in the scheme-suit.  It is for  the modification  or cancellation of such a scheme or rather  of the  scheme which is part of the decree that s. 57(9)  makes provision  by  the machinery of an  application.   If  after hearing the application under s. 57(9), the scheme itself is cancelled, the previous decree will cease to exist.  In such a  case, it cannot be said that the vacating of  the  decree passed under s.     92  does not itself amount to  a  decree within the meaning of s. 2(2)   of   the   Code   of   Civil Procedure.   It does not make any difference if  instead  of the  decree  being  vacated by  cancellation,  the  same  is modified.  An order passed on an application under s.  57(9) is  an amended decree against which an appeal lies under  s. 96 of the Code of Civil Procedure. (ii)The  reasoning of the High Court that the  remuneration enjoyed by the Archakas should be disallowed to them because of the vagueness of the items, was not open on the pleadings and was not justified on the facts and hence the High  Court was wrong in modifying the scheme. (iii)The  High Court was wrong in modifying the  scheme regarding   the  Karnam.   There  was  no  prayer   in   the application  under s. 57(9) to abolish the office of  Karnam and along with that his right to customary emoluments.   The High  Court erred in depriving the Karnam of doing his  duty himself and earning the remuneration customarily payable  to him  for his work.  That was not even the relief claimed  in the  application.  There was no justification  for  reducing the remuneration of the Karnam to a nominal figure.   Merely because  some  portion of his responsibilities  for  keeping proper  accounts  of Dibbi collection was  entrusted  to  an executive  officer did not warrant the virtual abolition  of his office. Rajagopala  Chettiar  v. Hindu Religious  Endowments  Board, I.L.R. 57 Mad. 271 (F.B.), referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  531  and 532 of 1961. Appeals from the judgment and decree dated January 31, 1957, of the Madras High Court in Appeal Suit No. 357/1951. 272 T. Satyanarayana, for the appellant (in C.A.No.531/1961)and respondents Nos. 3, 4, 6, 7 and 10 to 12 (in.C.A.No.532/61). A.  V.  Viswanatha  Sastri.  and  T.V.R.  Tatachar  for  the appellants (in C.A. No. 532/1961). C.K. Daphtary, Attorney-General, R. Ganapathy Iyer and  R.N. Sachthey,  for  the respondent (in C.A.  No.  531/1961)  and

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Respondent No. 2 (in C.A. No.532/1961). October  31, 1963.  The Judgment of the Court was  delivered by AYYANGAR J.-These two appeals arise out of a single judgment of  the  High Court of Andhra Pradesh and are filed  by  two distinct  parties who felt aggrieved by it, pursuant to  the grant of certificates of fitness granted  by the High  Court under Art. 133(1) of the Constitution. In  Dwaraka  Tirumalai--a  village  in  the  West   Godavari district  of Andhra Pradesh, there is a temple dedicated  to Sri Venkateswaraswami.  The administration of the affairs of this  temple was being conducted under a scheme  settled  on the  28th August, 1930 by the Subordinate Judge of Eluru  in Original  Suit No. 1 of 1925 on his file.  That was  a  suit filed  by certain worshippers of the temple under s.  92  of the  Civil Procedure Code for the settling of a  scheme  for the proper management and administration of the institution. The hereditary trustees of the temple as well as the  office holders  thereof,  and in particular the  archakas  and  the Karnam were party-defendants to that litigation.  There had, even then, been controversy as regards the rights of the two office  holders whom we have named and as regards the  items of  remuneration to which they were entitled and these  were considered  and  findings  recorded by  the  Court  and  the provisions  of  the scheme framed embodied the  findings  on these points.  From the decision of the learned  Subordinate Judge  appeals  were  filed to the High Court  both  by  the worshipper  plaintiffs  as well as by the  Dharmakartas  who were 273 members of the family of the Zamindar of Mylavaram which was the  hereditary trustee of the temple-but both  the  appeals were dismissed and the scheme, as framed by the trial Judge, was confirmed. During  the  pendency  of  this suit in  the  Court  of  the Subordinate Judge, the Madras Legislature enacted the Madras Hindu Religious Endowments Act (Madras Act 11 of 1927) which we will hereafter refer to, as the Act.  It was an enactment to  provide.  as  its  preamble  recited,  for  "the  better administration  and governance" of certain  Hindu  Religious Endowments.    The  temple  of  Venkateswaraswami   was   an institution  to which the Act applied and according  to  the nomenclature  adopted by the Act the temple in question  was an  "excepted  temple"an  expression which  was  defined  as meaning "a temple, the right of succession to the office  of trustee     whereof........................     has     been hereditary".  As already stated, the family of the Zamindars of Mylavaram were the hereditary trustees of this temple. Section 75 of the Act ran : "75.   Where the administration of a religious endowment  is governed by any scheme settled under section 92 of the  Code of Civil Procedure, 1908, such scheme shall, notwithstanding any  provisions of this Act which may be  inconsistent  with the  provisions  of such scheme, be deemed to  be  a  scheme settled  under this Act, and such scheme may be modified  or cancelled in the manner provided by this Act." The scheme framed by the Subordinate Judge and confirmed  by the High Court thus being a scheme which was "deemed to be a scheme  settled under the Act", the provisions of  s.  57(9) were attracted and this sub-section ran: "57.  (9)  Any scheme of administration settled by  a  court under this section or which under section 75 is deemed to be a  scheme  settled  under  this Act may,  at  any  time  for sufficient  cause, be modified or cancelled by the court  on an

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1 SCI/64-18 274 application  made by the Board or the trustee or any  person having interest, but not otherwise." In  accordance with the powers contained in that behalf  the Board  of Commissioners for Hindu Religious Endowments  (for shortness the Board) who were the authorities constituted to administer  the Act filed an original petition on August  3, 1947O.P.  76  of 1947 in the Court of  the  District  Judge, ’West  Godavari  for the modification of  the  scheme.   The points  upon  which  the  modifications  were  sought   were numerous and several of these were accepted by the Court but only two of them are now in controversy and are the subject- matter of the appeals and     these     relate    to     the remuneration allowable to two classes  of  temple  officials (a) Archakas, and (b)    the  Karnam, both of these  holding their  office  by hereditary right.   The  learned  District Judge  accepted the contention raised by these two  sets  of officeholders that no case had been made out for varying the remuneration  which had been held payable to them under  the original scheme in O.S. 1 of 1925.  Against this decision of the District Judge an appeal was filed to the High Court  by the  Board of Commissioners and the learned  Judges  allowed the appeal in part and substantially modified the provisions as to the remuneration payable to the two officeholders.  It is only necessary to add that the archaka respondents  filed a memorandum of cross objections to the appeal preferred  by the  Board, but this was dismissed.  That dismissal has  now become  final and the claims made in that memorandum  cannot be  and  are  not  the  subject  of  challenge  before   us. Questioning  the  correctness of the judgment  of  the  High Court  in the appeal by the Board both the archakas as  well as  the Karnam filed petitions for certificates  of  fitness under Art. 133 and these having been granted, their  appeals are  now  before us.  Civil Appeal No. 531 of  1961  is  the appeal  filed by the hereditary Karnam of  the  suit-temple, while Civil Appeal 532 of 1961 is by the Archakas. 275 Civil Appeal No. 532 of 1961 : We shall, first, take up for consideration Civil Appeal  532 of  1961.  which  is concerned with  the  grievance  of  the archakas  against  the  variation made  by  the  High  Court against the scheme as settled by the learned District Judge. According  to the appellants, they are entitled  to  several items of remuneration.  The major one among these is a  half share  in  the votive offerings in the shape  of  cash  etc. deposited by the worshippers in the Hudni or dibble kept  in the  temple  to which they claimed title by virtue  of  long usage  and custom.  It was said that the  total  collections from  the dibbi amounted to near Rs. 50,000 per  year.   The manner  in  which  the  dibbi  collections  were   gathered, accounted  for  and divided is set out in  the  judgment  in O.S.1 of 1925 and from its contents it is manifest that this usage  had been recognised by several previous decisions  in litigations  to  which the temple was a  party.   We  might, here,  mention a matter which is of relevance only to  Civil Appeal  531 of 1961 and that is that from the half share  to which  the temple was entitled the Karnam of the temple  was by  custom  given for his services a one anna  or  a  1/16th share.   As regards these the learned Subordinate  Judge  in his judgment in O.S. 1 of 1925 observed : "The  archakas and the Karnam of the temple were allowed  to take their respective shares in the collections in dibbi for a  long  time and though the origin of such a right  is  not known,  it cannot be said that it had no legal  origin.   It

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might  have been recognised by the founder him--elf, of  the temple." Besides  a share in the dibbi collections the archakas  also laid  a claim to a share in the bhogam and besides,  certain fees  on the occasion of marriages or Upanayanams  performed in  the temple. monies dropped on the plate on the  occasion of  Dweeparadhana and certain claims to Padaraksha  Kanukalu and  certain  pumpkins which were brought to the  temple  as offerings to the deity.  It was their claim that their right 276 to  these items of extra remuneration was founded on  custom and  had  been  recognised and given  effect  to  from  time immemorial by Courts on occasions when their right to any of these items was disputed.  The learned Subordinate Judge who framed the scheme in O.S. 1 of 1925 did not specifically set out  these minor items in the scheme that he framed,  though some  of  these matters were the subject of  discussion  and finding  in the judgment to which the scheme was a  schedule but in line with the terms of s. 79 of the Act which, by the date  his judgment was pronounced, had come into  force  and which read: "79.  Save as otherwise expressly provided in or under  this Act  nothing herein contained shall affect  any  established usage of a math or temple or the rights, honours, emoluments and  perquisites  to  which  any person  may  by  custom  or otherwise be entitled in such math or temple." added in paragraph 23 of the scheme these words: "Nothing  contained in the scheme shall  affect  established usage  with  regard to the rights, honours,  emoluments  and perquisites  to which any person may by custom or  otherwise be entitled in the temple." There  was, however, a specific reference in the  scheme  in cl.  12  for the division of the dibbi collections  and  the handing over to the archakas of the half share to which they were entitled. It  was of the terms of this scheme that modifications  were sought by the petition filed under s. 57(9) of the Act.  The petition  while conceding, in paragraph 4(e), the  right  of the  archakas  to the half share in the  dibbi  collections, proceeded to state in paragraph 7(g), "7.  (g)  The  archakas  claim a half  share  in  the  dibbi collections; such half share exceeds Rs. 18,000 per year; in spite of this the archakas claim further moneys.  As payment of such a claim is against the interests of the temple, 277 provision has to be made that the archakas are not  entitled to any remuneration or fee or share or in the shape of lands or  income  from the lands, other than their  share  in  the dibbi collection." and in sub-paragraph "7.  (b)  The practice of giving a share of  the  bogums  to certain  temple  servants is against the  interests  of  the temple." The modification thus sought was objected to by the archakas who  were impleaded as respondents to the petition and  they averred  in  paragraphs 11 and 12 that their  right  to  the bogums  and the other fees and perquisites which  they  were claiming  and which were being received and enjoyed by  them up  to  then, were rightfully theirs and that there  was  no reason,  in law or equity, to deprive them of  these  items. The   learned  District  Judge,  after   accepting   several suggestions  made by the Board for the modification  of  the scheme  in  the  matter of the manner  in  which  the  dibbi accounts  were to. be kept, how the dibbi was to  be  opened etc. which. are no longer the subject of complaint. observed

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as  follows  in regard to the archakas and the  Karnam  with whom we are concerned: "So  far as the archakas, and the karnam are concerned  most of their rights are governed by the decrees, usage,  custom, etc.,  and  they  should be adhered   to   For  doing  these definite  duties  irrespective of the question  whether  the worshipper  visits  the temple or not, they are  paid  their share  in the dibbi collections  The person incharge of  the deity  at  the time of the worship will be the  archakas  or archakas  attached to the temple  They  may be  required  to perform   special  worship  or  conduct   other   ceremonies according  to usage and custom and be paid accordingly.   It is  unnecessary  and  it will be dangerous  to  disturb  the established 278 usage  in  the temple or to create  misunderstandings  which will  detrimentally  affect the worshipping public  and  the smooth working of the institution intended primarily for the propitiating of God by the worshippers who go there  seeking temporal  and  spiritual advantages.  So far  as  the  other offerings  by  the  donors to the temple of  the  deity  are concerned  which  are not put in the dibbi the  archakas  or others  can  lay  no  claim...........................   The archakas have got certain rights in the prasadams.  There is no  reason why that right should be commuted.  These  things have  to  be  left to the good sense  of  the  archakas  and sthanikar........................  According to  P.W.1,  the quantities to be supplied for each bhogum are fixed.   These things  should  not  be  changed  as  no  trouble  has  been experienced with regard to it." (Italics ours). Thus  in effect the learned District Judge, though  he  made substantial   modifications   in   the   details   of    the administration,  refused to disturb the mode or  quantum  of remuneration which had previously prevailed in the temple. It was from this judgment that the Board preferred an appeal to  the  High Court.  The learned Judges of the  High  Court modified  the  direction of the learned  District  Judge  by stating: "The appellant seeks also the modification of clause (14) of the scheme in so far as it provides that the archakas  shall be  entitled  to claim as and for their  remuneration  ’only half the share of the income from the dibbi installed in the temple and such other emoluments, perquisites etc.,  allowed under the decrees of Courts, or usage’.  We are in agreement with  the  learned  Counsel  for  the  appellant  that   the provision  as regards ’other emoluments,  perquisites  etc., allowed to them under the decrees of courts and ’ usage’  is too vague and likely to give rise to 279 difficulties.    We  think  that  their  claim   should   be restricted to a half share in the dibbi collections and to a similar  share in the pumpkins and rice offered at the  time of  the  dedication, of a calf to the deity  a  right  which appeared to have been recognised for long.  In our  opinion, they   should  be  entitled  to  no  other  perquisites   or emoluments.   This  part  of clause (14)  will  be  modified accordingly.", and  later in the judgment the learned Judges  dealing  with the claims made in the memorandum of cross objections, added : "Mr.   Vishnurao for the archaka-respondents has urged  that the scheme needed no modification.  His main and substantial contention  is in relation to the emoluments  receivable  by the archakas.  He contends that his clients are entitled  to a half share in all the votive offerings made to the  deity.

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We are not satisfied that the archakas are entitled to  such a share.  It is notorious that on account of bad management, the  archakas of temples all over this part of  the  country have  been  claiming  rights  far  in  excess  of  what   is legitimate  and proper.  In the case of lands  belonging  to the  deity  and put in their possession,  claims  have  been generally advanced to full ownership thereof repudiating the title of the deity thereto. ..Such    claims    have    been negatived and an    arrangement  has been  recently  arrived at,  so  far as the rest while Andhra  State  is  concerned, whereby  the archakas are allowed to enjoy a portion of  the land  for their services.  We have no doubt that  the  claim now set up to half of whatever is offered to the deity is  a similar  unfounded  claim  and cannot be  justified  on  the ground  of ancient usage.  In our opinion, the provision  we have already suggested for the remuneration of the  archakas in  dealing  with  the  contentions  of  the  appellant   is adequate." In  consequence, clause (14) of the scheme was  modified  to read : 280 "The  archakas shall be entitled to claim as and  for  their remuneration only half share in the dibbi collections and to a similar share in the pumpkins and rice offered at the time of  the  dedication  of a calf to the  deity  and  shall  be entitled to no other perquisites or emoluments." It  is the legality and correctness of this modification  in the  scheme  that  is  the subject  of  the  appeal  by  the archakas-Civil Appeal 532 of 1961. Two  points  were  urged by Mr.  Viswanatha  Sastri  learned Counsel for the appellant.  The first was that no appeal lay from  the order of the District Judge modifying  the  scheme and that the learned Judges of the High Court were in  error in  entertaining the appeal and modifying the  provision  in cl.  (14)  regarding the remuneration  permissible  for  the archakas. (2) If, however, it be held that the appeal by the Board  was  competent  he  urged  that  the  learned  Judges committed an error in effecting the modification which  they did.. We  shall deal first with the submission that no appeal  lay to the High Court from the decision of the District Judge in the Original Petition seeking modification of the scheme  in O.S.  1  of 1925.  The steps in the argument on  this  point were  as  follows.  Appeals are statutory  and  unless  some specific  statutory provision could be pointed out  enabling an  appeal  to be filed, any order passed  by  an  authority would be final.  No doubt, the proceedings were in the Court of  the District Judge and that would by  itself  ordinarily attract  rights  of appeal appurtenant to the  decisions  of that  Court.  But there was no scope for the application  of this principle because the proceeding under s. 57(9) of  the Act   before  the  District  Judge  was  initiated   by   an application or an original petition and not by a suit.   The resultant decision of the District Judge was, therefore, not "a decree" as defined by s. 2(2) of the Civil Procedure Code which runs, to quote the material words: "The  formal expression of an adjudication which so  far  as regards the Court expressing it, con- 281 clusively  determines the rights of the parties with  regard to all or any of the matters in controversy in the suit  and may  be either preliminary or final.  It shall be deemed  to include  the rejection of a plaint and the determination  of any  question within section. 47 or section 144,  but  shall not include................................

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The  order  passed on O.P. 76 of 1947 was  therefore  not  a decree so as to attract the provision in s. 96 of the  Civil Procedure Code but merely an order and as from such an order no  appeal lay under the Civil Procedure Code, the right  to appeal  was  dependent  on the  existence  of  some  special provision in the Act itself Section 84 of the Act  contained a  provision  for appeals from certain  orders  of  District Judges  on  applications made to the Court to set  aside  or modify certain decisions of the Board, but there is no  such provision  in  relation to the orders passed by  a  District Judge  on  an  application  to him  under  s.  57(9).   This necessarily  led, the argument ran, to the result  that  the order of the District Judge disposing of the application  by the Board was not appealable.  In support of this submission reliance  was placed on the decision of a Full Bench of  the Madras High Court in Rajagopala Chettiar v. Hindu  Religious Endowments Board(1).  Section 84(1) of the Act enacted : "If any dispute arises as to whether a math or temple is one to which this Act applies or as to whether a math or  temple is an excepted temple, such dispute shall Be decided by  the Board." Pursuant to the power thus conferred the Board decided after an  enquiry that the temple whose trustee was the  appellant before the High Court, was not an " excepted temple".   From this  decision the aggrieved trustee availed himself of  the remedy provided by s. 84(2) which ran: "A  trustee affected by a decision under subsection (1)  may within one year apply to the Civil 1)   I.L.R. 57 Mad- 271. 282 Court  to modify or set aside such decision, but subject  to the result of such application the order of the Board  shall be final." (italics ours). The District Judge refused to set aside or modify the  order of  the  Board  but confirmed it.  Under s. 84  as  it  then stood,  there  was no specific provision for  appeals  being filed  against  an  order  of  the  District   Court  on  an application  filed to it under s. 84(2).   Nevertheless  the aggrieved  trustee  filed an appeal to the  High  Court  and thereupon   a  preliminary  objection  was  raised  to   the maintainability of the appeal which question was referred to a Full Bench for its decision.  The learned Judges sustained the  preliminary objection for the reason that the order  of the  District Court did not fall within the definition of  a decree  within s. 2(2) of the Civil Procedure Code,  because the  proceeding  in  which  the  order  was  passed  was  an application  and  not a suit and consequently s. 96  of  the Civil  Procedure  Code was not attracted.   There  being  no specific  provision  conferring a right  of  appeal  against orders  under s. 84(2), the Full Bench held that  no  appeal lay  to the High Court.  On the analogy of this decision  it was  urged  before us that as the proceedings  in  the  case before us originated on an application filed under s. 57(9), in  the absence of any provision for an appeal conferred  on the aggrieved party by the Act, the appeal to the High Court was incompetent. We are clearly of the opinion that the principle of the Full Bench  decision  cited  does not apply  to  the  application before us and that the appeal was competent.  Section 57  of the  Act deals with two types of cases.  The first  is  that comprised in sub-ss. (1) to (7).  These deal with the  power of  the  Board  to  frame schemes  and  the  proceedings  in relation  thereto.   Sub-section (1) empowers the  Board  to settle  a scheme for the proper administration of  a  temple and the endowments attached thereto and specifies the manner

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in which proceedings for the purpose may be initiated.  Sub- section (2) enumerates 283 the  provisions which may be contained in the scheme ,to  be framed.  Sub-section (3) sets out the matters incidental  to the  determination  of  the  properties  pertaining  to  the temples  which  are to be made part of  the  scheme  framed. Sub-section (4) reads: "57.  (4)  The  Board may, for good  and  sufficient  cause, suspend,  remove or dismiss any executive officer  appointed in  pursuance of a scheme settled under sub-section  (1)  or direct the removal of such officer." and sub-s. (5) "57.  (5)  The  Board may at any time by order  and  in  the manner provided in sub-section (1) modify or cancel a scheme settled under that sub-section." Sub-section  (6) directs the publication in  the  prescribed manner  of  the orders of the Board settling,  modifying  or cancelling  a scheme under the section.  This completes  the fasciculus  of sections dealing with the power of the  Board to frame a scheme and matters ancillary thereto.  Up to this stage  the proceedings are all before the Board.   Next,  we have sub-s. (7) which reads "57.  (7)  The  trustee or any person  having  interest  may within six months of the date of such publication  institute a suit in the court to modify or set aside such order. Subject  to  the  result of such suit  and  subject  to  the provisions of sub-section (9) every order of the Board shall be  final and binding on the trustee and all persons  having interest." Therefore in the case of schemes framed by the Board  itself it  is  clear that parties aggrieved have a  right  to  file suits  and against the decrees passed in such suits it  need hardly be said that there would automatically be a right  of appeal  under  the Code.  The next relevant  sub-section  is that  numbered  (9)  which we have  set  out  earlier.   The question  is  whether a different result as to  appeals  was intended  in regard to proceedings taken under s. 57(9).   A scheme which is framed under s. 92, Civil Procedure Code 284 which is "deemed to be a scheme under s. 75 of the Act",  is one which has been framed in a suit and the scheme itself is part  of  the  decree  in the schemes it.   It  is  for  the modification  or cancellation of such a scheme or rather  of the  scheme which is part of the decree that s. 57(9)  makes provision  by  the machinery of an  application.  if,  after hearing the application under s. 57(9), the scheme itself is cancelled, and s. 57(9) provides for such a contingency  and contemplates such an order-the previous decree will cease to exist.   In  such  an event it would  scarcely  be  open  to argument that the vacating of the decree passed under s.  92 of  the  Civil Procedure Code would not itself amount  to  a decree within the meaning of s. 2(2) of the Civil  Procedure Code.   Does it make any difference in that instead  of  the decree  being vacated by cancellation, it is  modified?   We are  clearly of the view that it makes no  difference.   The same matter might be viewed from a slightly different angle. The  scheme-decree itself might have contained  a  provision granting liberty to a party to the decree to move the  Court by  an "application" for the modification of the  scheme  in stated  contingencies.   If  in pursuance  of  such  liberty reserved,  an  application were made to  amend  the  scheme- decree,   the   resultant   order  though   passed   on   an "application"  would certainly be an amended decree  against which an appeal would lie under s. 96 of the Civil Procedure Code.   We  need  only  add that  the  legality  of  such  a

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reservation  of  liberty has recently been  upheld  by  this Court.   If the reservation of power or the liberty  in  the decree would produce such a result and render the  amendment of  the  scheme  an  amended decree so  as  to  satisfy  the definition of a decree within s. 2(2) of the Civil Procedure Code, it appears to us that it makes no difference that such a  liberty  to  move  the Court  to  modify  the  decree  is conferred  not  by the scheme-decree but by  an  independent enactment   such  as  the  Act  now  before  us.    In   the circumstances,  we consider that the appeal by the Board  to the High Court was competent and that the learned Judges had jurisdiction to entertain and deal with the appeal. 285 Coming next to the merits of the decision of the High Court, learned  counsel  for the appellant pointed out  that  there were  seven  families  of archakas who held  the  office  by hereditary  right,  who  divided  the  share  of  the  dibbi collections  and the other minor items  between  themselves. Worship  in  the temple went on from 5 A.M. every day  to  9 P.m.  and during this entire period, 4 or 5 of the  archakas have to function continuously.  Besides, there were  between 40  and  50 festivals every year which entail  heavy’  work. From  out of the remuneration and perquisites they  received the  archakas had to engage Srivaishnavite cooks to  prepare the naivedyams and items of food prepared for the deity  and there  were  also other expenses of a similar nature  to  be incurred   by  them.   In  the  face  of  these  and   other circumstances  to which he drew our attention  he  submitted that  there  was no justification for interfering  with  the items of remuneration, emoluments and perquisites sanctioned by custom and usage which had been recognised after  contest by  decrees  of courts.  These matters were brought  to  our attention with a view to demonstrating that the remuneration and  perquisites which the learned District Judge held  them to be entitled, were not so utterly out of proportion to the duties  which they had to discharge in connection  with  the worship   in   the  temple.   In  view,  however,   of   the circumstances to be presently mentioned we consider that  it is  not  necessary  to pursue this line  of  argument.   The appellants   did  not  dispute  that  the  share  of   dibbi collections  etc. and other items of perquisites  which  had been fixed by custom and usage was really a remuneration for the  services  performed. if that were so, it  would  follow that  a  radical change in circumstances might  justify  its revision.  It might be upward or it might be downward.  This position  also  was not disputed by  learned  counsel.   But learned  counsel was well-founded in his submission that  on the pleadings in the case and on the evidence that was  led, there  was no justification for the High Court to  interfere with  paragraph  14 of the scheme as framed by  the  learned District Judge.  It would 286 be  noticed  that the learned District Judge  had,  in  that paragraph,  after  making  provision  elsewhere  for   safe- guarding  the interests of the temple and  for  streamlining the administration, allowed to the archakas the remuneration to  which they were held entitled by custom and usage  which had  been proved to be established after contest in  courts. In O.P. 76 of 1947 which had been filed by the Board seeking modification  of the scheme settled in O.S. 1 of  1925  they stated in paragraph 7(g) whose terms we shall repeat; "The  archakas claim a half share in the dibbi  collections; such  half share exceeds Rs. 18,000 per year.  In  spite  of this the archakas claim further moneys.  As payment of  such a  claim is against the interests of the  temple,  provision

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has  to  be made that the archakas are not entitled  to  any remuneration  or  fee or share or in the shape of  lands  or income  from the lands, other than their share in the  dibbi collections.  " From this the following seems to be clear: (1) The claim  of the  archakas to a half share in the dibbi  collections  was not  disputed, nor was the payment said to be improper.  (2) Further claims of the archakas which was explained as  being one to a share of the lands or of the income from the  lands other  than  the  half share in the  dibbi  collections  was disputed.   In sub-paragraph (h) an objection was raised  to giving  a  share in the bhogams to the  temple  servants  in which term the archakas would be included in these term: The  practice  of giving a share of the bhogams  to  certain temple  servants  is against the interests  of  the  temple. Provision may be made for the framing of suitable rules  and regulations  by the trustees subject to the confirmation  of the  Board  in  regard to the  remuneration  of  the  temple servants.  " In  the counter-statement filed on behalf of  the  archakas- respondents  they asserted their right to what  had  already been established by decrees of courts and 287 also  to their share in the bhogams.  The  learned  District Judge  examined this question on the basis of the  evidence, upheld their claim to certain perquisites and the result  of his  finding  he  recorded in paragraph  14  of  the  scheme already  extracted.  The Board filed an appeal against  this decision  to  the  High  Court.   In  regard,  however,   to paragraph 14 of the scheme the only ground urged was  ground 13 which ran: "The  lower court erred in allowing the archakas as much  as half of the dibbi collections". In  other words, no objection was raised to their  enjoyment of  their share in the bhogam as well as  the  miscellaneous items of remuneration which they had been receiving some  of which  we have set out earlier.  The learned Judges  of  the High  Court at the stage of the appeal did not  disturb  the finding  as  regards  the share of  the  dibbi  collections. Indeed,  they could not have, because there was not  even  a prayer  for interfering with that share in O.P. 76  of  1947 that was filed by the Board notwithstanding the line adopted in ground 13 of their memorandum of appeal.  To sum up,  the position  as it emerged at the hearing of the appeal by  the High  Court was this.  In their application to the  District Court  the Board had conceded the right of the  archakas  to the  half  share  in the dibbi collections  and  desired  no modification of the scheme in O.S. 1 of 1925 in that regard. They,  however, prayed for a modification in so far  as  the original scheme recognised and made provision for the  right of  the  archakas to a share in the bhogams.   The  District Judge had, of course, maintained the right to a share of the dibbi collections which was not in dispute, but had  decided against  the  Board as regards the  modification  sought  as regards bhogams in para 7(h) of the Original Petition.   The Board  filed  an appeal.  There was no ground of  appeal  as regards the right of the archakas to a share of the  bhogams so  that except with the leave of Court they were not  in  a position  to canvass the propriety of the rejection  of  the relief they sought. 288 The Board,. however, questioned the right of the archakas to a  share of the dibbi collections which,  having  regard  to the  contents  of their petition, was  not at all  open  to them.   The  ground upon which the learned  Judges  modified

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paragraph  14 of the scheme by eliminating all  items  other than  the half share of the dibbi collections was  that  the paragraph was too vague and might give rise to difficulties. In  this connection the learned Judges failed to  take  into ,account  the fact (1) that these items of remuneration  had been claimed by them and had been,after contest, allowed  by decrees   of   courts  in  which  their  quantum   and   the circumstances  in  which they were to be received  had  been fixed,  so that though the clause which made a reference  to custom  and  usage appeared prima facie  vague,  in  reality there was no vagueness about them, (2) This apart, that  the scheme framed by the Subordinate Judge in O.S. 1 of 1925 had been  working  for over a quarter of a century and  had  not given  rise  to any difficulties  notwithstanding  that  the items  were  not  set out in the scheme  with  precision,  a matter  which  is  specifically  referred  by  the   learned District  Judge  in the passage extracted earlier  which  we have  underlined. (3) That even in O.P. 76 of 1947 filed  by the  Board  there was no allegation that the  terms  of  the scheme framed in O.S. 1 of 1925 which was couched in similar language  had  given rise to troubles of  interpretation  or that  they  had  been productive of  confusion  as  to  need clarification  and particularly by way of elimination  which is  certainly not any clarification.  The reasoning  of  the learned Judges, therefore, that the remuneration theretofore enjoyed by the archakas should be disallowed to them because of the vagueness of the items was not open on the  pleadings and was not justified by the facts.  In these  circumstances we  consider  that  the  learned Judges  were  in  error  in modifying  cl.  14  of  the scheme  framed  by  the  learned District Judge. Civil Appeal No. 532 of 1961 is accordingly allowed and  the original paragraph 14 of the scheme 289 as  framed by the learned District Judge is  restored.   The appellants are entitled to their costs in this Court,  which will be paid by respondents 1 and 2. CIVIL APPEAL No. 531 OF 1961 : This appeal, as stated earlier, relates to the  remuneration payable  to  the  Karnam  who  also  holds  his  office   by hereditary right.  Under the scheme framed in O.S. 1 of 1925 the  remuneration of the Karnam consisted of the payment  to him of a 1/16th of the half share in the dibbi  collections. Remuneration on this basis for the duties discharged by  the Karnam had been established by custom and ancient usage  and it  was  this that was specifically set out in  the  scheme- decree passed in O.S. 1 of 1925.  In its application to  the District Court the Board had prayed that the remuneration so fixed might be modified.  The allegation in the petition  in relation  to  this matter is to be found in  paragraph  8(g) where it stated: "The Karnam of the temple who now gets a share of the  dibbi collections never does service but employs a deputy on a pay which  has  no proportion to the  remuneration  that  he-the Karnam--gets from the dibbi.  The work that the deputy  does is inadequate and thus the temple loses.  A provision has to be made in the Scheme that if the Karnam does not himself do duty but employs a deputy, the temple is bound to pay out of the dibbi only the actual salary of the Karnam." In  the  counter-statement  filed  by  the  Karnam  who  was impleaded as the 9th respondent to the petition he averred "The  duties  of  the karnam of the  temple  or  his  deputy consists of sitting at the dibbi and maintaining a chitta of the  offerings deposited in the dibbi by the  pilgrims.   In accordance  with  immemorial  custom and  usage,  the  dibbi

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collections  are  counted every day in the presence  of  the manager,   the   archakas   and   the   karnam   or    their representatives, weighed and divided as per their respective shares" 290 and  in the later paragraphs an objection was raised to  the mode  of remuneration suggested in cases where a deputy  was employed  as  being contrary to long established  usage  and custom.   In the Judgment of the learned District  Judge  he said this in regard to the Karnam: "So  far  as the karnam is concerned, he  should  preferably render the duty himself, but if for any reason he prefers to engage himself in other work, be will be entitled to have  a qualified  deputy  who should be accepted by  the  executive officer  and  the managing hereditary trustee.   The  deputy will  not be entitled to any share in the dibbi income,  but only  the  karnam  who will make his  own  arrangements  for payment to him." This was embodied in paragraph 17 of the modified scheme  as framed by the District Judge, and this ran: "  17.  The karnam should render duty himself He should  not appoint  a  deputy and if he does, the karnam  will  not  be entitled to have any share in the dibbi income.  Any  deputy appointed  by  the karnam will be allowed to do  his  duties only if the deputy is approved by the Executive Officer  and he  will  be paid only such salary as may be  fixed  by  the Executive Officer.  Deputies can be appointed by the  karnam only with the previous approval of the executive officer." The  Board  felt  aggrieved by this  direction  and  in  the memorandum of appeal it complained: "The lower court should have seen that the provision in  cl. 17  for the office of the karnam is not in the interests  of the institution." The learned Judges of the High Court modified para graph  17 by   depriving  the  karnam  of  his  share  in  the   dibbi collections,  even if he chose to perform duties  personally and after the modification the paragraph read:    291 "The  karnam  shall be entitled to a salary of  Rs.  25  per mensem.  He may appoint a deputy in his place who should  be a person acceptable to the executive officer." The  reasons  assigned  for making  this  modification  were two:(1)As  a  result of the modifications  effected  by  the learned  District Judge, as regards which no  objection  was raised,  provision had been made for, the appointment of  an executive  officer  whose  duty  it  was  to  keep   regular accounts, which would show the particulars of the  offerings made  in the dibbi from which the share due to the  archakas could be computed, the karnam’s duties and  responsibilities had been lessened, if not eliminated., (2) Since the karnam, as  a  matter  of practice, discharged  his  duties  through deputies  appointed  by him, it was not necessary  that  the trustees should insist upon his personal attendance and  the temple might therefore benefit from the practical  abolition of  this  hereditary office.  The learned  Counsel  for  the appellant  contests the correctness of this approach to  the problem  and we agree with him that the learned Judges  were in   error  in  modifying  s.  17  of  the  scheme  in   the circumstances of the case.  The office of Karnam was held by hereditary  right and without entering into a discussion  of the question as to whether such an office could be abolished and if so, in what circumstances, there was no prayer in the application  by the Board to abolish that office  and  along with it the right of the karnam to the customary emoluments.

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The  averment  in  paragraph 8(g) which  we  have  extracted earlier,  was  (a)  a complaint  that  the  Karnam  employed deputies  on a nominal salary paid by him and that the  work of  these  deputies was unsatisfactory,  (b)  Consequent  on this,  there was a prayer for a direction whereby  when  the karnam  entrusted his duties to a deputy, the karnam  should not  be entitled to the customary remuneration of an  1/16th part  in  the  half share of  the  dibbi  collections  which pertained to the temple but only to the actual wages paid to the deputy.  The subject-matter of the dispute which had  to be 292 resolved  by  the District Court and of the  High  Court  on appeal   was only whether the scheme framed in O.S. 1 of 1925 should  be  modified so as to provide for the payment  of  a lesser remuneration where the karnam employed a deputy.  The learned District Judge bad considered these matters and  had given his directions in paragraph 17 of the scheme. The  learned  Judges  of the High Court,  however,  did  not address  themselves to the pleadings and to the only  matter in  controversy before them viz., (1) should the  karnam  be entitled  to appoint deputies to perform his duties  and  if so,  in what circumstances and subject to  what  conditions, (2) in such an event what should be the remuneration payable to  the  karnam.   Instead  they  proceeded  practically  to abolish.  the hereditary office and permitted him a  nominal remuneration.  It is unnecessary to consider whether it  was such  a drastic change that was intended to be urged in  the relevant  ground of appeal to the High Court which  we  have set out earlier, for we are clearly of the opinion that  the learned Judges were in error in modifying in the manner they did para 17 of the scheme.  Let us see the actual effect  of para  17  of the scheme as framed by  the  learned  District Judge.   He  recognised the customary  remuneration  of  the office-holder.   But  that remuneration was  not  by  custom intended to be a sine cure,, to be drawn and enjoyed by  the Karnam, he being at liberty to appoint a deputy at a nominal salary  to perform the duties of the office.   Normally  the Karnam  himself  had to perform the duties and it  was  only when  owing to unavoidable reasons he could not do  so  that custom sanctioned the employment of a deputy.  By the  order that  he  passed  he  recognised  this  also,  and  made  it incumbent on the Karnam to do duties personally in order  to entitle  him  to  claim  the  customary  remuneration.   The conditions  set out in para 17 therefore were just  both  as regards  the institution as well as the  office-holders  and gave  effect  to  the customary rights  and  obligations  of both.But by their order the learned Judges 293 deprived  the Karnam of doing duty himself and  earning  the remuneration  customarily  payable to Gm for  such  service. That,  as  we  have pointed out, was  not  even  the  relief claimed  in the application--assuming that such  relief  was claimable   and  could  have  been  granted  by  the   Court functioning  under the Act having regard to the terms of  s. 79 we have extracted earlier, a matter about which we prefer not to express any opinion. The learned Judges themselves appeared to recognise that the office  being hereditary they could not abolish it.  But  if this  were  so,  it was not proper  to  direct  the  virtual abolition of this office and depriving the office-holder  of his  customary remuneration merely because some  portion  of the  responsibilities for keeping proper accounts  of  dibbi collections was entrusted to an executive officer.   Learned Counsel for the appellants pointed out that the  appointment

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of’  an executive officer would not by itself eliminate  the need  for a Karnam and the performance of the  duties  which custom  and  usage laid on him: We agree with  him  in  this submission.   In the circumstances, we see no  justification for  reducing  his  remuneration to a  nominal  figure.   We consider the directions given by the learned District  Judge proper  and sound and are clearly of the opinion  that  they did  not call for any interference by the learned Judges  of the High Court. Civil Appeal 531 of 1961 is also allowed and paragraph 17 of the  modified  scheme, as framed by the District  Judge,  is restored.   The appellant would be entitled to the costs  of their appeal in this Court. Appeals allowed. 294