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CASE NO.: Appeal (civil)  5641 of 2004

PETITIONER: Vinayaka Dev Idagunji & Ors.                             

RESPONDENT: Shivaram & Ors.                                          

DATE OF JUDGMENT: 28/07/2005

BENCH: B.P. Singh & Arun Kumar

JUDGMENT: J U D G M E N T

ARUN KUMAR, J.

       The question for consideration in this appeal is :Whether a suit to  establish a right to be hereditary ’archaks’ (Pujaris) in a temple and a  share in the offerings made to the deity, is a suit in relation to personal/  private right of the archaks or it is a suit in the nature of exercising a  public right in a public trust? The question has arisen in the context of  bar created by Section 50 of the Bombay Public Trusts Act, 1950.   Regarding suits falling within the categories enumerated in Section 50  of the Act, either the Charity Commissioner has to file them or they  have to be filed after obtaining consent in writing of the Charity  Commissioner.         Briefly, the facts are :         the plaintiffs (respondents herein)  claiming to be hereditary archaks of the temple in suit from times  immemorial and having a right to perform their duties (poojapal)as  archaks in the temple, filed a civil suit for declaration to establish these  rights.  According to the plaintiffs, their family has been performing  poojapali and exercising the rights incidental thereto since ancient  times.  The plaintiffs also claimed that they are entitled to emoluments  in the form of share in the offerings made by the devotees.  The  ancestors of  the plaintiffs have been exercising such rights since time  immemorial when there was no trust for the temple and there were no  trustees.  The trust was created much later and the trustees are only   managers of the properties of the trust.  The trustees sought to remove  the plaintiffs from archakship.  According to plaintiffs the trustees had  no right to remove hereditary archaks like the plaintiffs.  The plaintiffs  further pleaded that often the offerings to the deity are symbol of  sacrificial dedication of the produce of the land grown by the efforts of  the devotees.  "Padiakki" is the rice and coconut given by the devotees  as dan (donation) to the officiating priest to take  home.  On this count,  the priest has to accept the  many negative karmas of the donor and to  mitigate this, the priest has to perform penance.  The plaintiffs had  been exercising their rights to the knowledge of the defendants who are  the trustees of the temple trust.  According to the plaintiffs the  archakship is not a job or vocation but a hereditary religious office,  functions whereof they have to discharge ungrudgingly.  A state of  harmony and cooperation between the trustees and archaks continued  till 1974-75.  Thereafter, the trustees allegedly prepared a  "Niyamavali" (Rule Book) meant for regulating the activities like  Pooja and Viniyogas etc.  The  Niyamavali had no legal or statutory  backing.  Under the Niyamavali the trustees also tried to interfere with  the right of the plaintiffs regarding remuneration and donations  received by them from the devotees.  According to the plaintiffs the  emoluments received by the archaks are not the income of the temple.         In order to get rid of the plaintiffs, the defendants issued a notice

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dated 21st September, 1994 terminating their services as archaks.  The  plaintiffs filed the instant suit for declaration that the plaintiffs are  hereditary archaks of Shri Mahaganapathy (Vinayaka Dev) Temple of  Idagunji in Honnavar Taluk and for consequential reliefs like declaring  that the order of termination issued by defendants dated 21st  September, 1994 is illegal, void and contrary to the principles of  natural justice etc.         The defendants \026 appellants filed a written statement denying the  rights of the plaintiffs to be hereditary archaks.  It was further pleaded  that the temple was under a public trust registered under the Bombay  Public Trusts Act, 1950.  Further a plea was taken in the written  statement that the suit filed against the trustees of the public trust and  the reliefs prayed in the plaint directly relate to administration and  management of the public trust and as such without making the temple  trust a party, the suit was not maintainable in view of Sections 50, 51,  79 and 80 of the Bombay Public Trusts Act read with Section 9 of the  Code of Civil Procedure.  According to the defendants, the plaintiffs  had not obtained the permission of the Charity Commissioner as  required under Sections 50 and 51 of the Bombay Public Trusts  Act to  file the present suit. On the basis of the pleadings of the parties, the trial court framed  as many as 32 issues.  At the stage of evidence the defendants  filed an  application under Order 14 Rule 2 read with Section 151 of the Code  of Civil Procedure that certain issues relating to maintainability of the  suit be tried as preliminary issues.  The application was rejected by the  learned Civil Judge.  The defendants filed a Revision Petition under  Section 115 of the Code of Civil Procedure before the High Court.  The  High Court declined to interfere with the order of the trial court and  accordingly dismissed the Civil Revision Petition. Further, in view of  the fact that the suit had been pending for more than 10 years, a  direction was issued to the trial court to dispose of the suit on merits  within six months.  The defendants, according to the said order, have  come up before this court by way of a petition for special leave to  appeal.  Leave was  granted and the order under appeal was stayed by  this court on 30th August, 2004.  Interim stay of the impugned order  was passed on the first day of hearing, i.e. on 7th May, 2004.  We have  heard learned counsel for the parties at length.  The main question for  consideration is whether the suit filed by the respondents-plaintiffs is  one which pertains to administration of a public trust or is it a suit to  establish a private right to archakship or worship in the temple filed by  persons claiming to be having such a right?  Relevant portion of  Section 50 of the Bombay Public Trusts Act as applicable to the facts of  the present case is reproduced as under :    " Section 50 : In any case-

(i)     where it is alleged that there is a breach of a  public trust,

(ii)    where a declaration is necessary that a  particular property is a property belonging to a  public trust or where a direction is required to  recover the possession of such property or the  proceeds thereof or for an account of such  property or proceeds from any person including  a person holding adversely to the public trust, or

(iii)   where the direction of the Court is deemed  necessary for the administration of any public  trust,

the Charity Commissioner or two or more persons  having an interest in the trust and having obtained the  consent in writing of the Charity Commissioner as  provided in Section 51 may institute a suit whether

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contentious or not in the Court within the local limits of  whose jurisdiction the whole or part of the subject matter  of the trust is situate, to obtain a decree for any of the  following reliefs :

(a)     an order for the recovery of the possession of such  property or proceeds thereof,

(b)     the removal of any trustee or manager,

(c)     the appointment of a new trustee or manager,

(cc)    vesting any property in a trustee,

(d)     a direction for taking accounts and making certain  inquiries,

(e)     a declaration as to what proportion of the trust  property or of the interest therein shall be  allocated to any particular object of the trust,

(f)     a direction authorizing the whole or any part of the  trust property to be let, sold, mortgaged or  exchanged,

(g)     the settlement of a scheme or variations or  alterations in a scheme already settled, or

(h)     granting such further or other relief as the nature  of the case may require :

Provided that no suit claiming any of the reliefs  specified in this section shall be instituted in  respect of any public trust except in conformity  with the provisions thereof."            To find out the nature of the suit, we have to go to the plaint in  the suit as instituted by the plaintiffs- respondents in the Civil Court.  It  is the case of the plaintiffs that they have a hereditary right of  archakship with emoluments attached.  This right of archakship started  with the consecration of the deity.  The families of the plaintiffs have  been performing archakship right from the time of consecration of the  deity.  In fact the ancestors of the plaintiffs who were performing the  functions as archaks also acted as managers and custodians of the  temple and its properties.  After the introduction of the Madras  Endowment  Act, the trustees were appointed.  One of the members of  the families of the plaintiffs used to be appointed as a trustee of the  Board which consisted of five trustees at the initial stages.  This  continued till the year 1930 whereafter they stopped having a member  of the plaintiffs’ families on the Board of trustees.  The plaint contains  various details to show and establish the right of the plaintiffs to  archakship of the temple and the right to a share in the offerings of the  deity with which we are not concerned at this stage.  The fact relevant  for our purpose is that vide a notice dated 21st September, 1994, the  plaintiffs’ services as archaks were terminated with which their right to  perform puja in the temple and to have a share in the offerings also  came to be terminated.  The plaintiffs challenged the said notice as  illegal and untenable.  The plaintiffs prayed for a declaration that they  are hereditary archaks of the temple in question.  The said right to act  as archaks was in the nature of the property. A declaration was also  sought to have share in the offerings to the deity at the temple.  Further  a declaration was sought that the order of termination dated 21st  September, 1994 was illegal, void and contrary to the principles of  natural justice.  Injunction was sought to restrain the plaintiffs from  interfering with the rights of the plaintiffs in performing their duties as

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archaks.         We are in the present appeal concerned with the pleas raised by  the defendants- appellants in their written submissions to the effect that  the suit was  barred under Section 50 of the Bombay Public  Trusts Act,  1950.  The trial court as well as the High Court have rejected this plea  raised by the defendants-appellants.         A perusal of Section 50 of the Act shows that in matters referred  to or enumerated in the said Section, a suit is to be instituted after  obtaining the consent in writing of the Charity Commissioner as per  provisions of Section 51 of the Act.  The learned counsel for the  appellants submitted that the claim of the plaintiffs in the plaint falls  within the ambit of administration of a public trust as admittedly  there  is a public trust with respect to the temple in question.  If the matter  pertains to administration of public trust then the Charity  Commissioner comes into the picture and a Civil suit is not  maintainable without compliance of Sections 50 and 51 of the Act.  The  real question is whether the present suit is a suit pertaining to  administration of a public trust.  In response to this question, the  learned counsel for the respondents drew our attention to the preamble  to the Act which provides "an Act to regulate and to make better  provision for the administration of public religious and charitable  trusts in the State of Bombay".   From this Preamble it is apparent that the main object of the  Act is to regulate the administration of public trusts.  The question is:  Will this extend to regulating the right to perform worship in the  temple?  The right asserted by the plaintiffs in the plaint is claimed as   their families’ personal/private right.  Whether they are entitled to  continue as archaks on hereditary basis is a private claim of the  plaintiffs.  This right has nothing to do with any public functions of the  trust or administration of the trust.  Thus according to the learned  counsel for the plaintiffs,  Section 50 of the Act is not attracted at all.   In support of the submission that the right claimed by the plaintiffs is  their personal right  which is an enforceable  civil right, the learned  counsel relied on Rajkali Kuer vs. Ram Rattan Pandey [ 1975 (2) SCR  186 ] wherein it was observed "that religious offices can be hereditary  and that the right to such an office is in the nature of property under  the Hindu Law is now well established."  In the said judgment, this  Court has relied on a Full Bench judgment of the Calcutta High Court  while observing as under :         "That religious offices can be hereditary and that  the right to such an office is in the nature of property under the Hindu Law is now well established.  A Full Bench of the Calcutta High Court in Manohar vs.  Bhupendra [AIR 1932 Calcutta 791] has laid down  in respect of Shebaitship of a temple and this view  has been accepted by the Privy Council in two  subsequent cases in Ganesh vs. Lal Behary [(1936)  LR 63 IA 448] and Bhabatarini vs. Ashalata  [(1943)LR 70 IA 57].  In a recent judgment of this  Court reported as The Commissioner, Hindu  Religious Emdowments, Madras vs. Sri Lakshmindra  Thirtha Swamiar [(1954) SCR 1005] this view has  been reiterated and extended to the office of a  Mahant.  On the view that Shebaiti is property, this  Court has also recognized the right of a female to  succeed to the religious office of Shebaitship in the  case reported as Angurbala vs. Debabrata [(1951)  SCR 1125], where the question as to the applicability  of Hindu Women’s Right to Property Act to the office  of Shebaitship came up for consideration.  On the  same analogy as that of a Shebaiti right, the right of  a hereditary priest or Pujari in a temple must also  amount to property where emoluments are attached  to such an office."  

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Reliance was also placed on Ram Rattan, through Lrs. Vs.  Bajrang Lal and ors. [ 1978 (3) SCC 236] wherein while dealing with  the question whether hereditary office of Shebait is immovable  property, it was noted that : "The question then is whether the hereditary office of  Shebait is immovable property.  Much before the  enactment of the Transfer of Property Act a question  arose in the context of the Limitation Act then in force  whether a suit for a share in the worship and the  emoluments incidental to the same would be a suit for  recovery of immovable property or an interest in  immovable property.  In Krishnabhat bia Hiragange  vs. Kanabhat bia Mahalbhat etc. [ 6 Bom HCR 137]  after referring to various texts of Hindu Law and the  commentaries of English commentators thereon, a  Division Bench of the Bombay High Court held as  under :

       Although, therefore, the office of a priest in a  temple, when it is not annexed to the ownership of any  land, or held by virtue of such ownership, may not, in  the ordinary sense of the term, be immovable property,   but is an incorporeal hereditament of a personal  nature, yet being by the custom of Hindus classed with  immovable property, and so regarded in their  law\005\005"     It was argued on behalf of the respondents that the reliefs  claimed in the present suit do not fall in any of the clauses of Section  50 of the Act.  There is no allegation of breach of trust; no declaration  is sought that any property is a property belonging to a public trust.   The right to archakship is an individual and personal right enforceable  under ordinary law; nor any direction of the court is sought for  administration of the public trust.  The plaintiffs have never sought any  orders of the court regarding administration of the trust.  To illustrate  the point our attention was drawn to Sri Kallagar Devasthanan vs.  Thiruvengadathan [ AIR (30) 1943  Madras 222].  In this case the  question was about the competence of Civil Court to entertain a suit.   Father of the plaintiffs in this case was a hereditary archak of a temple.   The plaintiff was adopted by the mother after the death of his father.   The trust  did not recognize the plaintiff as an archak.  The plaintiff  filed a civil suit challenging the action and he being not allowed to be  archak of the temple.  Objection was taken about the maintainability of  the suit.  Reliance was placed on Section 73 of the Hindu  Religious  and Endowments Act by the defendants in support of objection  regarding maintainability of the suit.  The said Section had provision  similar to the one under consideration in the present case.  The  following observations are relevant for the present purpose :

       "If the words "administration or management"  used in sub-clause (3) of s.73 have been employed with  reference to the "religious endowment" as defined in  the Act and this is what is stated in that sub-clause, it  appears to be clear that they could not possibly be  taken to cover or include the case of a dismissal of an  archaka of a temple.  The administration or  management must be with reference to the "religious  endowment," i.e. with reference to the property  mentioned in the definition and not with respect to the  dismissal of an archaka.  The suit to set aside his  dismissal relates to a personal right and as long as  there is no question relating to the administration or  management of the endowed property, the suit cannot  be held to have been barred under that section."  

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This was also a case in which right to archakship was claimed  and it was held to be a private personal right which had nothing to do  with administration or management of the trust and the suit was held to  be maintainable in a civil court.  In the case in hand  respondents/plaintiffs are trying to establish their hereditary right to  act as archaks in the temple in suit.  This has nothing to do with  administration of the trust.         What is to be seen is  the relief the plaintiffs are seeking from the  court.  First of all, they are seeking a declaration about their  hereditary right as archaks of the temple.  This right is claimed in their  personal capacity as a family of archaks who have been performing the  functions of archaks since the day the temple was established and the  deity was consecrated.  It is different matter whether ultimately the  plaintiffs’ contention is accepted by the court or not.  Surely, the  plaintiffs are entitled to have their claim examined by the court.  If they  fail to establish their claim, they will be out of the court.  However, if  they succeed in establishing the claim they will be entitled to the  declaration sought.  They cannot be non suited at the threshold unless  the suit is expressly barred by any statute.  We have seen the provision  of Section 50 of the Bombay Public Trusts Act relied upon by the  appellants-defendants.  The said section does not cover a suit of the  present type.  Analogy has been drawn of Section 92 of the Code of  Civil Procedure while considering Section 50 of Bombay Public Trusts  Act.  Both provisions are in the nature of representative suits which  pertain to public trusts and protection of public interest in the trusts.   In the present case, there is no public interest involved.  The only  interest is that of the plaintiffs and their families.  The right of  archakship is claimed on the basis of inheritance.  It is a hereditary  personal right which they want to establish.  The right is purely of a  private nature.  We are of the view that Section 50 of the Bombay  Public Trusts Act is not attracted at all in the facts of the present case.         We have seen the object of the Bombay Public Trusts Act.  Appropriately the Act seeks to regulate and make better provision for  administration of public religious and charitable trusts.  Such trusts  cater to things of public interest, i.e .things which concern large  sections of public.  Unless such trusts are properly administered  public  interest will suffer.  Therefore, matters affecting administration of such  trusts are covered under Section 50 of the Bombay Public Trusts Act.   This situation is somewhat similar to suits under Section 92 of the Code  of Civil Procedure.  These suits are suits in representative capacity and  pertain to matters of public interest.  In contrast the suit which has  given rise to the present appeal is a suit to establish an individual right.   The plaintiffs claim that they are hereditary archaks of the temple since  time immemorial and are entitled to exercise this right which cannot be  taken away from them.  No public interest is involved. Public is not  concerned whether A acts as an archak or B acts.  Such a suit,  therefore, cannot be covered by Section 50 of the Act.  Law is settled on  this aspect as per various  judgments of this Court.

       In  Raje Anand Rao vs. Sham Rao and ors. [(1961) 3 SCR 930],  the dispute had arisen in view of dissatisfaction with the management  of a temple which was an endowment for the public.  A suit under  Section 92 of the Code of Civil Procedure was filed.  A scheme was  framed for the management of the temple.  The right of pujaris as a  hereditary right  was not affected under the scheme.  Therefore, some  of the pujaris who were not parties to the suit and were not, therefore,  heard,  made a grievance of this fact.  The matter came upto this court.  An amendment of the scheme by the District Judge without hearing the  pujaris was also put in issue.  However, it was held that the fact that  the pujaris were not parties to the suit will not take away the  jurisdiction of the District Judge to modify the scheme, if the  modification is with respect to administration of the trust and if it has  not affected the private rights of the pujaris.  A suit under Section 92 of  the Code of Civil Procedure  being a representative suit  binds not only  the parties thereto but all those who are interested in the trust.  The

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scheme was framed for the management and administration of the trust  and it did not affect the hereditary right of the pujaris to conduct the  puja.  Thus this judgment makes it clear that the right of the pujaris to  conduct puja is their private right and does not fall in the category of  suits under Section 92 of the Code of Civil Procedure.           

       Our attention was drawn by the learned counsel for the  respondents to some other judgments holding  the right to perform puja  in the temple as a private right of the pujaris or archaks  and the same  cannot be defeated by invoking section 50 the Bombay Public Trusts   Act or Section 92 of the Code of Civil Procedure.  We need not refer to  all the judgments in view of the fact that the law on this point is well  settled.  We only refer to the latest judgment of this court in  Sahebgouda (Deceased) vs. Ogeppa and ors [ 2003 (6) SCC 151].   This case  pertains to a suit for declaration of Pujaris’ Pujariki right of  performing puja.  The plaintiff sought an injunction to restrain the  defendants from interfering with the aforesaid right.  Objection was  taken about the maintainability of the civil suit in view of the provision  of Bombay Public Trusts Act, 1950.  However, the objection was turned  down holding that the reliefs claimed in the suit do not come within the  ambit of Sections 19 or 79 of the Act which gave jurisdiction to the  Assistant Charity Commissioner to decide certain issues like existence  of public trust or whether a property is a trust property.   In this suit  brought by the plaintiffs to establish his right of archakship  the only  relief claimed was  a declaration regarding the right of the plaintiffs- appellants to function as hereditary pujaris  or for pujariki rights   in  performing puja in the temple and consequential decree for injunction  for restraining the respondents from interfering with the aforesaid  rights of the plaintiffs.  The facts of this case are somewhat similar to  those of the case in hand.  It was held that the case was clearly out of  the purview of the barring provisions of the Bombay Public Trusts Act.  We are in respectful agreement with the view taken in this judgment.  It  is held that the present suit is not barred by provisions of the Bombay  Public Trusts Act.  Accordingly, no interference is called for with the  judgment under appeal.  The appeal is without merit and is hereby  dismissed. Since the trial of the suit on merits has been already   sufficiently  delayed, the trial court may dispose of the suit on priority  basis as directed by the High Court in the impugned judgment.