THATHACHARIAR Vs. SRINIVASA RAGHAVA IYENGAR

JUDGEMENT

(1.) THIS is an appeal from the judgment of Venkataramana Rao, J. in S.A. No. 469 of 1932, dated April 14, 1936. The second appeal arose out of a suit for a declaration that the plaintiff and his family were entitled to the first honours, namely thirtham, thulasi and Sri Satari on the occasion of the Pavittrotsavam festival in the temple of Sri Sarangapaniswami at Kumbakonam. The plaintiff's case was that he and his family had been performing the said festival from time immemorial and that immediately after the prayers or worship are over, an offering of food prepared at the plaintiff's expense is offered to the deity and after karpoora harathi the plaintiff has to be given thirtham, thulasi, etc., and Sri Satari has to be placed over his head with parivattam, i.e., a piece of silk cloth. The claim was thus, as stated by Venkataramana Rao, J., "rested on longstanding custom and practice" and related entirely to "first honours" in connection with the festival which the plaintiff claimed to be entitled to conduct in the temple. The only question that arose before Venkataramana Rao, J., was whether the decree passed in the suit in respect of these honours was right or whether the Court had no jurisdiction to pronounce such a decree as the subject-matter of the litigation was not of the nature of a civil right and, therefore, not within the jurisdiction of a Civil Court. The learned Judge referred to several decisions bearing on the point, namely, Sri Rangachari V/s. Rangaswami Bhattachariar 32 M 291 ; 3 Ind. Cas. 881 ; 5 M.L.T. 33, Athi Sada- gopalacharlu Swamigal V/s. Elaya Valli Srinivasachariar (1913) M.W.N. 289 ; 19 Ind. Cas 257 ; 13 M.L.T. 340, Thirumalai Alwar Aiynngar V/s. Srinivasachariar 31 M.L.J. 758 ; 36 Ind. Cas. 568; A.I.R. 1917 Mad. 903 ; 4 L.W. 562; (1916) 2 M.W.N. 327 and Periyanan Servai V/s. Mahadevan Ambalam . He expressed the opinion that if the question were res integra, he should have been inclined to follow the observations of Sadasiva Iyer, J., in Athi Sadagopalacharlu Swamigal V/s. Elaya Valli Srinivasachariar (1913) M.W.N. 289 ; 19 Ind. Cas 257 ; 13 M.L.T. 340 apparently referring to that learned Judge's observations on pages 299 and 300. But he was of opinion that he was bound to follow the Bench decision in Thirumalai Alwar Aiyangar v. Srinivasachariar 31 M.L.J. 758 ; 36 Ind. Cas. 568; A.I.R. 1917 Mad. 903 ; 4 L.W. 562; (1916) 2 M.W.N. 327 in which it was decided that the honours claimed were appurtenant to the right of worship and, therefore, this right to such honours was a civil right, it being assumed or not contested seriously in that case that the right to perform the festival was a civil right. The learned Judge, however, referred to Periyanan Servai V/s. Mahadevan Ambalam also a Bench decision, which expressly dissented from the proposition laid down in Thirumalai Alwar Aiyangar V/s. Srinivasachariar 31 M.L.J. 758 ; 36 Ind. Cas. 568; A.I.R. 1917 Mad. 903 ; 4 L.W. 562; (1916) 2 M.W.N. 327 as will be seen from the extract given in the judgment appealed from A special kind of worship, to which some dignity is attached, but no emoluments of value are attached, cannot. In our opinion, be the subject of a suit in a Civil Court. To this extent we do not agree with the decision in Thirnmalai Alwar Aiyengay V/s. Srinivasachariar 31 M.L.J. 758 ; 36 Ind. Cas. 568; A.I.R. 1917 Mad. 903 ; 4 L.W. 562; (1916) 2 M.W.N. 327.

(2.) IN these circumstances, it is not possible to say why the learned Judge thought, that he was bound to follow the Bench decision in Thirumalai Alwar Aiyangar V/s. Srinivasachariar 31 M.L.J. 758 ; 36 INd. Cas. 568; A.I.R. 1917 Mad. 903 ; 4 L.W. 562; (1916) 2 M.W.N. 327 and not the decision in Periyanan Servai V/s. Mahadevan Ambalam which was a later decision and more or less coincided with his own view on the subject. Whatever that may be, we have to decide the question whether the right, that is claimed in the present spit to first thirtham, thulasi and the placing of Sri Satari on the head, is a civil right which can be agitated in Civil Court and decreed by a Civil Court. We are of opinion that the view enunicated in Periyanan Servai V/s. Mahadevan Ambalam is right. It is not disputed that where a religious office is claimed, any emoluments attached thereto may be sued for in a Civil Court either with the office or without the office; in other words, where a man's right to the office is not disputed but he does not get his emoluments he may sue on the emoluments in a Civil Court; or if his claim to the office is not recognised, he may sue for the office as well as for the emoluments. But the right to perform a festival cannot, in our opinion, be regarded as a right to an office. An attempt was made to apply the analogy of office to the case of a right of worship in Thirumalai Alwar Aiyangar V/s. Srinivasachariar 31 M.L.J. 758 ; 36 INd. Cas. 568; A.I.R. 1917 Mad. 903 ; 4 L.W. 562; (1916) 2 M.W.N. 327 but that attempt did not succeed, the Bench having declined to accept that contention which was put forward by the Advocate-General before them. There is no doubt at the same time that a right to take part in public worship in a temple, or of a deity outside while being taken in procession is a civil right. The question, however, remains, whether the right to individual and exclusive worship of the deity, i.e., to the exclusion of other worshippers, is, a civil right. It is, however, not necessary toi decide whether such exclusive right of worship is a civil right for the purpose of this appeal. It is enough to say that the point is not conceded definitely by Mr. K. Bhashyam Ayyangar who appears for the appellant and that it is a question that may have to be fully considered on some future occasion when it is necessary to do so. IN the present appeal it is possitye to start with the assumption that the right to such exclusive worship is a civil right. Even on this assumption it does not follow that the right to the "first honours" that are claimed in the present suit is a civil right. The right of worship is one thing and the right to receive certain honours or trifling gifts such as thulasi and holy water, is another. According to Sadasiva Iyer, J., the latter are only conferred by grace of the deity, and cannot be claimed as of right. Even otherwise, and even assuming that the right to receive thirtham, thulasi and to have the Sri Satari placed on one's head is a necessary concomitant of worship, it does not follow that precedence or the order in which these things are done is a civil right, IN the present case it is clear from the reliefs sought in the plaint as well as from the decree that has been passed in the plaintiff's favour that the relief that was sought for and granted was to enable the plaintiff to get what are known as "first honour" to the exclusion of the Patrachariars. The plaint seeks first honours to the exclusion of the Patrachariars and the decree also declares that the plaintiff and his family are entitled to first honours as stated in the plaint and not the Patrachariars of whom defendants Nos. 2 to 5 are the representatives. The decree further restrains the receiver, first defendant, by a permanent injunction from showing any first honours to the Patrachariars, and from refusing to show such honours to the plaintiff; in other words the controversy between the parties is not whether the plaintiff and his family are to get thirtham, thulasi, etc., at all but that they should get them before any one else, and in particular, before the defendant Patrachariars get them. So far as we can understand, these defendants have no objection to the plaintiff and his family getting the thirtham, thulasi, etc., after they themselves are given the same; and so far as we can see, also the plaintiff has no objection to the Patrachariars getting these things after the plaintiff and his family get them. This is a clear indication of the fact that the actual and real controversy between the parties is not merely the right to receive the particular articles or honours mentioned in the plaint, namely, thulasi, thirtham and Sri Satari, but to receive them before any one else, and in particular the Patrachariar defendants. It is, therefore, a mere question of dignity or precedence and nothing more. The right to dignity or precedence of this nature cannot, in our opinion, be regarded as a right of civil nature, whether it is claimed in a temple or elsewhere so long as it is not attached to an office. It follows, therefore, that this appeal must be allowed and that the decree which adjudicates upon matters which are not rights of a civil nature must be set aside. The appellants are entitled to have their costs from the plaintiff-respondent in all the Courts.