VINAYAKA DEV IDAGUNJI HONNAVAR Vs. SHIVARAM

JUDGEMENT

(1.) THIS revision is by the defendants questioning the findings recorded on issues 24, 25, 26, 29 and 30 in the negative in O. S. No. 10 of 2001 on the file of the learned Civil Judge (Senior Division), Honnavar, dated 27-8-2001.

(2.) THE brief facts of the case are as follows: the plaintiffs claiming to be the hereditary Archaks from time immemorial and have been performing their duties called 'poojapali'. This practice has been in vogue since ancient times, consistent with the custom. The plaintiffs' family have been exercising their right continuously, peacefully, openly and reasonably to the knowledge of all without protest or obstruction. This has moral and legal recognition apart from that of the public. This is a religious mandate and a question of right. Purohit being a symbolic Sacred Fire is "the leader" and not the servant as the niruktha and etimological interpretation and origin go. His duty is to secure the individual devotees 'adhi Bhautika', 'adhi Daivika' and 'adhyatmika' peace while conducting rituals outside the upadhi gambit and his realm extends to spiritual horizons, where there are no trustees of mundane assets of 'la munde'. Thus, the plaintiffs are entitled to get emoluments in the form of share in the offerings made by the devotees. The ancestors of the plaintiff were not appointed by any authority and when the first consecration took place, there were no trustees. The trustees are only the managers of the properties of the trust who are expected to keep the sanctity and decorum in the temple which comes within the ambit of the management of the properties. The manager of the endowment cannot arrogate himself the power of removing a hereditary Archak having proprietary nature of right. He can be removed after filing a suit and getting a decree. Tiie plaintiffs have been holding office not at the pleasure of the defendants. Their dismissal does not come within the scope of the term of'administration of management' of the religious endowment. The plaintiffs are well-versed in conducting rituals pertaining to the "stalsampradaya" on the lines prescribed by Agama and tantras. They are men of character and have been leading austere lives. Their emoluments for the Upadhi vritti consists of Tastik which fetches Rs. 73. 00 (39-6-0 and 33-10-0) in all per year to the two families. Further, they get half share in the "phalavali" and the whole of the 'padiakki' received by the endowment. "phalavali" means the fruits, nuts, vegetables etc. , dedicated by the devotees either in the temple for decoration or at the alter. It is the symbolic sacrificial-dedication of the produce of the land grown by the devotees. 'padiakki' is the rice and coconut given by the devotees as dana to the officiating priest to take home. On this count, the priest has to accept the many negative karmas done by the 'dhata', to mitigate which the priest has to perform penance. It is a morsel of sin in a sense and its redressal calls for an austere life. The plaintiffs are entitled to get one anna in a Rupee worth of panchakajjaya placed at the alter at the time of Panchakajjaya pooja performed on the request of the devotees. Giving of dakshina depends on the volition of the devotees. Prior to 1950, the priests themselves used to collect dakshina for Panchakajjaya Neivedya in addition to half coconut for the coconuts offered. Since 1950, the trustees undertook to supply Panchakajjaya and started to collect its value from the devotees but the share in the offering viz. , one anna was shown separately in their accounts as that of the priests and given to them. That the plaintiffs' right which is in the nature of the property was and is being acquiesed by the defendants. Their conduct, omissions, commissions, resolutions etc. , estoppel them from acting in derogation of the same. The Archakship is not a job or a vocation but a hereditary religious office which they have to discharge ungrudgingly. This religious office to officiate as Archak is a vrithi with emoluments attached to it in the form of tastik etc. , giving it the nature of heritable and partible property which also carried a status of legal character with it. That this state of harmony and co-operation between the trustees and Archaks continued till about 1974-75. At this time, the trustees appear to have thought of preparing a "niyamavali" probably meant for regulating the activities like Pooja and viniyogas etc. The said Code was not evolved either under a statute or in consultation with the archaks. It disclosed their mala fide intention of coming in between the devotees arid the Archaks by acting as intermediary to receive and Act as conduct line for emoluments from the devotees as the agents of Archaks for the spiritual and Agamic function officiated by the Archaks. This was against all ethical, traditional and customary precepts. The emoluments received by the Archaks are not income of the temple. Instead, they are part of their return for officiating as priests. Though the said emolument was not truly a sizeable one, the trustees thought otherwise. The Archaks having objected to the unreasonable demands of the trustees, the latter developed an hostile animus and the issue became a matter of prestige for the trustees. Their subsequent conduct is the result of the same. The trustees in order to induct their own henchmen as Archaks have been making hectic efforts for eliminating the plaintiffs. The plaintiffs received a notice dated 21-9-1994 allegedly terminating their services as Archaks to perform the Pooja in the temple. It is alleged in the said notice that the plaintiffs and their people are harassing the administrative staff etc. , and that they are not performing their duties as required under religious rules and customs etc. Subsequently, on 28-9-1994, a defamatory publication was published in the 'samyuktha Karnataka' daily by the first defendant suggesting that the plaintiffs were misappropriating the amounts sent to them by the devotees for the purpose of sevas in the temple. This allegation is a new founded one and is absent in the termination notice showing the manifest mala fide intention of the defendants to deprive the plaintiffs of their right by hook or by crook. The said notices are patently illegal and untenable. All the acts of omissions and commissions mentioned in the notices are cooked up ones. At no point of time, the plaintiffs were appraised of these so-called deficiencies or were called upon to answer to any of the allegations now levelled against them in the notices. The entire act on the part of the trustees is mala fide one and is motivated by ill will and hostility coupled with the sense of arrogance and egoistic assumption. On the above pleadings plaintiffs instituted the suit for declaration to declare that the plaintiffs are the hereditary Archaks of Shri Mahaganapathi (Vinayaka Dev)temple of Indagunji in Honnavar Taluk and for consequential reliefs and to declare that the order of termination issued by the defendants dated 21-9-1994 is illegal, void and contrary to the principles of natural justice etc.

(3.) THE trust filed a detailed written statement denying the title of archakship as hereditary. The suit pertaining to Sri Vinayaka Dev of idagunji, Honnavar Taluk, is a public trust registered under the provisions of the BOMBAY PUBLIC TRUSTS ACT, 1950. The present suit filed against the trustees of this Public Trust and the relief prayed in the plaint directly relates to the administration and management of the public trust Sri Vinayaka Dev, idagunji, as such, without making the temple trust as a party or without making the Vinayaka Dev as a party, the suit itself is not maintainable. The relief claimed by the plaintiffs in this suit is directly hit by the provisions of section 50 of the BPT Act. Hence, the suit is not maintainable as per Sections 50, 51, 79 and 80 of the Bombay Public Trust Act read with Section 9 of the cpc. Admittedly, the defendants 1 to 5 are the trustees of Sri Vinayaka Dev temple of Idagunji appointed by the District Court, Karwar. The arrangements of Pooja, viniyogas are the part of administration of the temple trust and the plaintiffs Archaks used to work as per the directions and under the administration of the Trustees and work allotted to them is also a part of the administration of the trust. The alleged rights of the plaintiffs are never noted under the provisions of the BPT Act nor registered in any documents relating to the Public Trust under the provisions of the BPT Act. The plaintiffs have not obtained the permission of the Charity Commissioner as required under Section 51 of the BPT Act to file this present suit. Hence, the suit is not maintainable in law. The plaintiffs have filed O. S. No. 17 of 1976 claiming their remuneration, emoluments and also for accounts for such arrears of emoluments and injunction in the Court of Munsiff, Honnavar. The suit came to be dismissed and even Miscellaneous Application No. 5 of 1988 for restoration of the suit also came to be rejected finally on 17-9-1994. The present suit is based on the same cause of action and the similar relief adding one more declaratory relief is nothing but a multiplicity of proceedings and it is clearly hit by the provisions of implied res judicata and the plaintiffs are also estopped to claim the relief as claimed in the suit. Moreover, the services of the Archaks plaintiffs came to be validly terminated with effect from 21-9-1994 and on the date of the suit the plaintiffs were not at all working as archaks nor performing any Pooja, viniyogas and as such the plaintiffs are not entitled for any reliefs much less permanent injunction as claimed. Admittedly, Sri Vinayaka Dev Temple of Jdagunji in Honnavar Taluk is a public Trust registered under the Bombay Trust Act as stated in the plaint. It is denied that the plaintiffs are the hereditary Archaks or they have a hereditary right of Archakship with emoluments attached and it is also not correct that the termination of the services of the plaintiffs by the present trustees is arbitrary, illegal and unreasonable. The termination is simplicitor and the defendants being the trustees have the right to terminate the services of the servants of the temple trust including the services of the plaintiffs who were working as poojaris or Archaks in the temple trust. The existing trustees viz. , defendants 1 to 5 were appointed under Section 47 of the Act by the district Judge, Karwar, as and when the vacancies arose. Among the plaintiffs, plaintiff 1 also applied for trusteeship of this temple trust by filing an application before District Court, and the brother of plaintiff 3, one paratneshwar Bhat had also filed an application for appointment of trustees of this temple trust. However, the learned District Judge practically deprecated and rejected the application filed by plaintiff 1, Shivaram Narayan Bhat and others. The other allegations of the plaint by para wise are denied. Accordingly, prayed to dismiss the suit.