KANDASAWMY MUDALI Vs. SABRAYA MUDALI

JUDGEMENT

(1.) The suit is brought for a declaration that the plaintiffs, the trustees of the Subramanyan Koil temple, are entitled to take their idols in procession through the Koothadum Pilliar Koil and Jayaram Chetty Streets of Saidepett. The plaintiffs plead that it has been customary to carry these idols in procession through these streets and they contend that even independently of custom they are entitled to do so as the streets are public streets. An order passed by the District Magistrate under Section 144 of the Criminal Procedure Code restraining the plaintiffs from carrying their idols in procession through those streets is the cause of action alleged. The defendants Nos. 2 to 4, the trustees of the Karani temple, plead that the Koothadum Pilliar Street belongs to that temple and to the owners of the houses on either side of it. Similarly, defendants Nos. 6 to 9 plead that Jayaram Chetty Street belongs to the Perumal temple of which they are trustees and to the owners of the houses on either side of the street. Both of them deny that they are public streets, they deny the custom sot up on behalf of the plaintiffs and they also maintain that it is against the Sastras and law to allow the trustees of the Subramanyan temple to carry the idols in procession through these streets.

(2.) Both the Courts have found that the streets are public streets. They have also found that the plaintiffs have not established any custom of carrying the idols of their Subramanyaswamy temple in procession along these two streets in question, although they may have done so on special occasions. The Munsif further held that even if it is a public street, yet the plaintiffs have no right at common law to carry their idol in procession through the public streets or to use such streets for the purpose of religious worship when the idol is carried in procession. This, of course, involves the result that the defendants, the trustees of the other temples, also have not the right to use those streets for the religious processions of their own idols. It was also held by the Munsif, that even assuming that the plaintiffs have got this right, still, as no special damage has been proved, the suit is not maintainable. On appeal the Judge disagreed with the Munsif on both the questions, which he had decided against the plaintiffs. Ho found that the plaintiffs are entitled to maintain the suit, though no special damage has been proved. He further held that ordinarily the trustees and the other persons interested would be entitled to use a common highway to carry their idols in religious processions. But he was further of opinion, if we have correctly understood his argument, that festivals and processions in Hindu temples are governed by rules laid down in the various agamas (sacred writings of the Hindus in regard to ceremonials) and as it is laid down in the agamas that, when an utsavam festival is to take place certain ceremonies, such as navasauthi have to be performed and that another deity should not be carried in procession within those streets so along as the effect of that ceremony is believed to exist, and the defendants trustees having performed navasatuhi in these streets the plaintiffs ought not to be allowed to take their idols in procession. On this ground he dismissed the plaintiffs claim. In appeal it was contended before us that the Judge's decision is opposed to the various decisions of this Court and the right of the plaintiffs to use a public highway for religious processions must be recognised.

(3.) As to the special ground which the judge has relied, we may observe that the grandha which has been relied on is not shown to be of any authority whatever and the defence witness examined is really not an expert witness. We attach no value, therefore, to the evidence of this witness, the Gurukkal, or to the grandha, Exhibit XVIII. But whatever may be the value of that grandha, we are of opinion that it has now been settled by a course of decisions, with which we agree, that the right claimed by the plaintiffs ought to be upheld.