Case: Bhogaraju Venkata Janakirama Rao  Vs. The Board Of Commissioners For Hindu Religious Endowments, Andhra Pradesh, Hyderabad

2. In Dwarka 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 29th 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 wider 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 rewards 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 provision 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 Dharamkartas who were members of the family of the Zamindar of Malavaran 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.3. 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 II 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.4. Section 75 of the Act ranWhere the administration of a religious endowment is governed by any scheme settled under S. 92 of theCode of Civil Procedure1908, 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 thisscheme 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 Section 57 (9) were attracted and this sub-section ran(9) Any scheme of administration settled by a Court under this section or which under S. 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 application made by the Board or the trustee or any person having interest, but notaccordance 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, 1947- O. 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 office-holders 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 office-holders, 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 beforeAppeal 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.5. 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 Hundi or dibbi 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. I 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 1925archakas 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 might have been recognised by the founder himself, of thea 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 Padaraksh Kanukalu and certain pumpkins which were brought to the ternple as offerings to the deity. It was their claim that their right 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 readSave 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 orin paragraph 23 of the scheme thesecontained 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 thewas, however, a specific reference in the scheme in cl. l2 for the division of the dibbi collections and the handing over to the archakas of the half share to which they were entitled.6. 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(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, 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 dibbiin sub-paragraph (h)(h) The practice of giving a share of the bogums to certain temple servants is against the interests of themodification 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 as follows in regard to the archakas and the karnam with whom we are concerned:"So far as thearchakas, 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 archaka 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 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 bhogam are fixed. "These things should not, be changed as no trouble has been experienced with regard to it.(here into  ) 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.7. 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 to them 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 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.later in the judgment the learned Judges dealing with the claims made in the memorandum of cross-objections,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 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 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.consequence, clause (14) of the scheme was modified to readarchakas 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. "

Court's reasoning:
11. 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 wasare 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 Section 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.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 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 be noticed that the learned District Judge had, in that paragraph, after making provisions else-where for safeguarding 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 shallreasoning of the learned Judges, therefore, that the remuneration therefore 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 Districtconditions set out in para 17 therefore were just both as regards the institution as well as the officeholders and gave effect to the customary rights and obligations of both. But by their order the learned Judges deprived the Karnam of doing duty himself and earning the remuneration customarily payable to him 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 mater 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 officeholder of his customary remuneration merely because some portion of the responsibilities for keeping proper accounts of dibbi collection was entrusted to an executive officer. Learned Counsel for the appellants pointed out that the appointment 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 are 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.