# BHOGARAJU VENKATA JANAKIRAMA RAO v. October 31 THE BOARD OF COMMISSIONERS FOR HINDU RELIGIOUS ENDOWMENT ANDHRA PRADESH

- **Citation:** [1964] 5 S.C.R. 270
- **Court:** Supreme Court of India
- **Decided:** 1963-10-31
- **Case number:** Civil Appeals Nos. 531 and 532 of 1961
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhogaraju-venkata-janakirama-rao-v-october-31-the-board-of-commissioners-for-2977
- **Pages:** 24

## Headnote

270
SUPREME COURT REPORTS
[1964]
BHOGARAJU VENKATA JANAKIRAMA RAO
1963
v.
October 31
THE BOARD OF COMMISSIONERS FOR HINDU
RELIGIOUS ENDOWMENT ANDHRA PRADESH
(P.B. GAJENDRAGADKAR,
K. SUBBA RAO,
K.N.
WANCHOO,
N. RAJAGOPALA AYYANGAR AND J.R.
MUDHOLKAR JJ.)
Code of Civil Procedure, 1908 (Act 5 of 1908), s. 2(2)-0rder
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).
A suit was filed by certain worshippers 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 frorr. 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, 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
f
-
.r
5S.C.R.
SUPREME COURT REPORTS
271
for interfering with the items of remuneration, emoluments and
1963
perquisites sanctioned by custom and usage which had been recognised after contest by decrees of courts.
Bh:Jgaraju VenHeld: The appeal filed by the Board of Commissioners in kata lanakirama
the High Court against the order of the District Judge was compeRao
tent and the High Court had jurisdiction to entertain and deal
v
with the appeal. A scheme framed under s. 92 of the Code of Th B · d if
Civil Procedure which is deemed to be a scheme under s. 75 of the
e oar
0
Madras Hindu Religious Endowments Act, 1927 is one which is Commissione7'
framed in a suit and the scheme itself is a part of the decree in for Hindu Re/ithe scheme-suit. It is for the modification or cancellation of gious Endowment
such a scheme or rather of the scheme which is part of the decree Andhra Pradesh
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

## Text

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270
SUPREME COURT REPORTS
[1964]
BHOGARAJU VENKATA JANAKIRAMA RAO
1963
v.
October 31
THE BOARD OF COMMISSIONERS FOR HINDU
RELIGIOUS ENDOWMENT ANDHRA PRADESH
(P.B. GAJENDRAGADKAR,
K. SUBBA RAO,
K.N.
WANCHOO,
N. RAJAGOPALA AYYANGAR AND J.R.
MUDHOLKAR JJ.)
Code of Civil Procedure, 1908 (Act 5 of 1908), s. 2(2)-0rder
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).
A suit was filed by certain worshippers 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 frorr. 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, 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
f
-
.r
5S.C.R.
SUPREME COURT REPORTS
271
for interfering with the items of remuneration, emoluments and
1963
perquisites sanctioned by custom and usage which had been recognised after contest by decrees of courts.
Bh:Jgaraju VenHeld: The appeal filed by the Board of Commissioners in kata lanakirama
the High Court against the order of the District Judge was compeRao
tent and the High Court had jurisdiction to entertain and deal
v
with the appeal. A scheme framed under s. 92 of the Code of Th B · d if
Civil Procedure which is deemed to be a scheme under s. 75 of the
e oar
0
Madras Hindu Religious Endowments Act, 1927 is one which is Commissione7'
framed in a suit and the scheme itself is a part of the decree in for Hindu Re/ithe scheme-suit. It is for the modification or cancellation of gious Endowment
such a scheme or rather of the scheme which is part of the decree Andhra Pradesh
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.LR. 57 Mad. 271 (F.B.), referred to.
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.
272
SUPREME COURT REPORTS
[1964]
1963
T. Satyanarayana, for the appellant (in C.A.No.
-
531/1961) and respondents Nos. 3, 4,. 6, 7 and 10
Bhogarqiu Ven- to 12 (in C.A. No. 532/61).
· kata Janakirama
Rao
v.
A. V. Viswanatha Sastri, and T. V.R.
Tatachari
for the appellants (in C.A. No. 532/1961).
The Board of
C.K. Daphtary, Attorney-General, R. Ganapathy
Commissioners Iyer and R.N. Sachthey, for the respondent (in ':,.A.
for Hindu Reli- No. 531/1961) and Respondent No. 2 (in C.A. No.
gious Endowment 532/1961).
Andhra Pradesh
October 31, 1963. The Judgment of the Court
Ayyangar J.
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.
Jn Dwarak1 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 instituticn. 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 remuner1tion 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 -
"
,,. .f
5 S.C.R.
SUPREME COURT REPORTS
273
members of the family of the Zamindar of Mylavaram
1963
which was the hereditary trustee of the temple-but
-.
both the appeals were dismissed and the scheme, Bhogara]u :enas framed by the trial Judge, was confirmed.
kata Janak1rama
During the pendency of thb suit in the Court
R:o
of the Subordinate Judge, the Madras Legislature The B ~rd of
enacted the Madras Hindu Re.ligious ~ndowments Comm:Ssioners
Act (Madras Act II of 1927) which we will herea~ter for Hindu Relirefer to, a~ the Act.
It wa~ an enac::tment to provide, .
E d
1
.
bl
. d
~
" h b
d . .
· gwus n owmen
a_s its pdream e rec1t~, , for
t ~
Het~erd a Rm1
1
~1~tra- Andhra Pradesh
hon an
governance
o certam
m u
e 1g10u,S
Endowments. The temple of Venkateswaraswami
Ayyangar J.
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 whish 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 sc::heme 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 provisfons 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 a~
I SCl/64-18
1963
Bhogaraju Venkata Janakirama
274
SUPREME COURT REPORTS
[1964]
application made by the Board or the trustee
or any person having interest, but not otherwise."
Rao
In accordance. with the powers contained in that
v.
behalf the Board of Commissioners for Hindu ReThe Board of ligious Endowments (for shortness the Board) who
Commissioners were the authorities constituted to administer the
for Hindu Reli- Act filed an original petition on August 3, 1947gious EndowmentO.P. 76 of 1947-in the Court of the District Judge,
Andhra Pradesh West Godavari for the modification of the scheme.
The points upon which the modification& were sought
Ayyangar 1· 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 archakarespondents 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 t~e appeal file~ by ~~e
hereditary Karnam of the suit-temple, while C1v1l
Appeal 532 of 1961 is by the Archakas.
5 S.C.R.
SUPREME COURT REPORTS
275
Civil Appeal No. 532 of 1961 :
1963
We shall, first, take up for consideration Civil Bhogaraju VenAppeal 532 of. 1961 which is concerned with the kata Janakirama
grievance of the archakas against the variation made
Rao
by the High Court against the scheme as settled by
v
the learned Distri~t Judge.
Acco~ding to the appelThe Bo~rd of
!ants, they are entitled to several items of remunera- Commissioners
tion. The major one among these is a half share for Hindu Re/iin the votive offerings in the shape of cash etc. deposited gious Endowment
by the worshippers in the Hudni or di bbi kept in the Andhra Pradesh
temple to which they claimed title by virtue of long
usage and custom. It was said that the total collecAyyangar J.
tions 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 oneanna or a !/16th share. As regards these the learned
Subordinate Judge in his judgment in 0.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
~hough the origin of such a right is not known,
1t cannot be said that it had no legal origin.
It might have been recognised by the founder
himself, of the temple."
Besides a share in the dibbi collections the arcbakas
also ~aid a claim to a sha~e in the bhogam and besides,
certam fees on the occas10n of marriages or Upanayanams performed in the temple, monies dropped
on t~e pla~e on the occasion of Dweeparadhana and
certam 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
SUPREME COURT REPORTS
[1964]
1963
to these items of extra remuneration was founded
-
on custom and had been recognised and given effect
Bhogaraju Ven- to from time immemorial by Courts on occasions
kata Janakirama when their right to any of these items was disputed.
Rao
The learned Subordinate Judge who framed the scheme
v.
in 0.S. 1 of 1925 did not specifically set out these
The Board of minor items in the scheme that he framed, though
Commissioners some of these matters were the subject of discussion
for Hindu Reli- and finding in the judgment to which the scheme was
gious Endowment a schedule but in line with the terms of s. 79 of the
Andhra Pradesh Act which, by the date his judgment was pronounced,
AyyangarJ. 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.
lR,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,
. · ·
I
T
5 S.C.R.
SUPREME COURT REPORTS
277
provision has to be made that the archakas are
1963
not entitled to any remuneration or fee or share
-.
or in the shape of lands or income from the Bhogara;u _Venlands, other than their share in the dibbi collec- kata Janakirama
tion."
Rao
v.
and in sub-paragraph (h) :
The Board of
"7. (h)
The practice of giving a share of the ~om1?issioner!
bogums to certain temple servants is against Jor Hindu Re/1the interests of the temple."
gwus Endowment
Andhra Pradesh
The modification thus sought was objected to by the
archakas who were imp leaded as respondents to the
Ayyangar J.
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.
whio:h are no longer the subject of complaint. observed 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
1963
Bhogaraju Venkata Janakirama
Rao
v.
The Board of
Commissioners
for Hindu Religious Endowment
Andhra Pradesh
Ayyangar J.
278
SUPREME COURT REPORTS
(1964]
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
5 S.C.R.
SUPREME COURT REPORTS
279
difficulties.
We think that their claim should
1963
be restricted to a half share in the dibbi collections and to a similar share in the pumpkins Bhogaraju Venand rice offered at the time of the dedication kata Janakirama
of a calf to the deity-a right which appeared
Rao
to have been recognised for long. In our opinion,
v.
they should be entitled to no other perquisites The Board of
or emoluments. This part of clause (14) will Commissioners
be modified accordingly.",
for Hindu Reiland later in the judgment the learned Judges dealingg~o~ En~w;e~t
with the claims made in the memorandum of crossn ra ra es
objections, added :
Ayyangar J.
"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.
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
owner3hip 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 erstwhile 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
SUPREME COURT REPORTS
[1964]
1963
"The archakas shall be entitled to claim as and
for their remuneration only half share in the
Bhogaraju Vendibbi collections and to a similar share in the
kata Janakirama
pumpkins and rice offered at the time of the
Rao
dedication of a calf to the deity and shall be
v.
entitled to no other perquisites or emoluments."
The Board of
I . h l
1.
d
f h'
d'fi
C
. .
·
t 1s t e ega 1.ty an correctness o · t 1s mo 1 caomm1ss10ners
.
.
h
h
h
·
h
b'
f h
1
.
. Uon m t e sc eme t at 1s t e su ~ect o t e appea
for Hmdu Rell- by the archakas-Civil Appeal 532 of 1961.
gwus Endowment
T
·
d • M V'
h S
·
Andhra Pradesh
wo pomts w
1
e~e urghe oy
r
1
. iswanat a astnlearned Counse 1or t e appe lant. The first was
Ayyangar J.
that no appeal lay from the order of the District
·i
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-
·~
I
'
SS.C.R.
SUPREME COURT REPORTS
281
elusively determines the rights of the parties
1963
with regard to all or any of the matters in controversy in the suit and may be either preliminary Bhogaraju Venor final. It shall be deemed to include the re- kata Janakirama
jection of a plaint and the determination of any
Rao
question within section 47 or section 144, but
v.
shall not include ............................. "
The Board of
Commissioners
The order passed on O.P. 76 of I 947. was therefore for Hindu Relinot a decree so as to attract the prov1s10n m s. 96 .
E d
h
. .1
d
d
l
d
gzous n orvn1ent
of t e C1v1 Proce ure Co e but mere y an or er and A dh
p d h
as frcm such an order no appeal lay under the Civil
n ra ra es
Procedure Code, the right to appeal was dependent
Ayyangar J.
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 Boardr1>. 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
(I) I.L.R. 57 Mad. 271.
1963
Bhogaraju Venkata Janakirama
Rao
282
SUPREME COURT REPORTS
[1964]
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).
v.
The District Judge refused to set aside or modify
The Board of the. order of the Board but confirm~d it. Un~~r s. 84
Commissioners as 1t then stood, there was no specific prov1s10n for
for Hindu Reli- appeals being filed_ ag_ainst an ord~r of the District
gious Endowment Court on an apphcat1on filed to It under s. 84(2).
Andhra Pradesh Nevertheless the aggrieved trustee filed an appeal
to the High Court and thereupon a preliminary objecAyyangar J. tion 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 subss. (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 in which proceedings for the
purpose may be initiated. Sub-section (2) enumeratei
-
5S.C.R.
SUPREME COURT REPORTS
283
the provisions which may be contained in the scheme
1963
to be framed. Sub-section (3) sets out the matters
-
incidental to the determination of the properties Bhogaraju Venpertaining to the temples which are to be made part kataJanakirama
of the scheme framed. Sub-section (4) reads:
Rao
"57. (4) The Board may, for good and sufficient
v.
cause, suspend, remove or dismiss any executive The Board of
officer appointed in pursuance of a scheme settled Commissioners
under sub-section (1) or direct the removal of for Hindu Relisuch officer."
gious Endowment
and sub-s. (5)
Andhra Pradesh
"57. (5) The Board may at any time by order
Ayyangar J.
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 rewlt 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."
:1"here~or~ in the case of sc~emes framed by the Board
itself it l~ clear that. parties aggrieved have a right
to. fil~ suits and agamst the decrees passed in such
suits it need hardly be said that there would automatically be a right of appeal under
the Code.
Th~ next relevant sub-section is that numbered (9)
wh1~h 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
SUPREME COURT REPORTS
[1964]
.
1963
which is "deemed to be a scheme under s. 75 of the
-.
Act", is one which has been framed in a suit and the
Bhogara1u_ Ven- scheme itself is part of the decree in the schemekata Janakirama suit. It is for the modification or cancellation of
Rao
such a scheme or rather of the scheme which is part
v.
of the decree that s. 57(9) makes provision by the
The B~ard of machinery of an application. If, after hearing the
Comn:isswners application under s. 57(9), the scheme itself is cancelled,
for Hmdu Relt- -and s. 57(9) provides for such a contingency and
gwus Endowment contemplates such an order-the previous decree
Andhra Pradesh will cease to exist. In such an event it would scarcely
Ayyangar J.
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 schemecdecree 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 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.
.\ ..
....
\
-
r
5 S.C.R.
SUPREME COURT REPORTS
285
Coming next to the merits of the decision of the
1963
High Court, learned counsel for the appellant pointed
-
out that there were seven families of archakas who Bhogaraju Venheld the office by hereditary right, who divided the kata Janakirama
share of the dibbi collections and the other minor
Rao
items between themselves. Worship in the temple
v.
went on from 5 A.M. every day to 9 P.M. and during The Board of
this entire period, 4 or 5 of the archakas have to Commissioners
function continuously. Besides, there were between for Hindu Reli40 and 50 festivals every year which entail heavy gious Endowment
work.
From out of the remuneration and perquisites Andhra Pradesh
they received the archakas had to engage Srivaishnavite cooks to prepare the naivedyams and items of Ayyangar J.
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. Jn 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
286
SUPREME COURT REPORTS
[1964)
1963
be noticed that the learned District Judge had, in
-
that paragraph, after making provision elsewhere
Bhogaraju Ven· for safe-guarding the interests of the temple and for
kataJanakirama streamlining the administration, allowed to the archakas
Rao
the remuneration to which they were held entitled
v.
by custom and usage which had been proved to be
The Board of established after contest in courts. In O.P. 76 of
Commissioners 1947 which had been filed by the Board seeking modi-
/or Hindu Reli- fication of the scheme settled in O.S. 1 of 1925 they
gious Endowment stated in paragraph 7(g) whose terms we shall repeat;
Andhra Prade1h
"Th
h k
1 ·
h If h
·
h d'bb'
e-arcaasca1ma a saremte 1 1
Ayyangar J.
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 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 archakasre&pondents they asserted their right to what had
already been established by decrees of courts and
,
5 S.C.R.
SUPREME COURT REPORTS
287
also to their share in the bhogams. The learned
1963
District Judge examined this question on the basis
-
of the evidence, upheld their claim to certain per- Bhogaraju Venqui>ites and the result of his finding he recorded in kata Janakirama
paragraph 14 of the scheme already extracted. The
Rao
Board filed an appeal against this decision to tne
v.
High Court. In regard, however, to paragraph 14 The B~a:d of
of the scheme the only ground urged was ground Comm_issioner~
13 which ran:
for H,mdu Religious Endowment
"The lower court erred in allowing the archakas Andhra Pradesh
as much as half of the dibbi collections".
In other words, no objection was raised to their enAyyangar J.
jcyment 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 a& it emerged
at the hearing of the appeal by the High Court was
this. Jn 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 Dif>trict 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.
•
288
SUPREME COURT REPORTS
l
[1964]
~
1963
The Board, however, questioned the right of the
-
archakas to a share of the dibbi collections which,
Bhogaraju Ven- having regard to the contents of their petition was
kata Janakirama not at all open to them.