Full Judgment Text
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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
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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.
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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
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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,
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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
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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
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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.
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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
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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"
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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:
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"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
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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.
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