V.S. Lakshminarayanan Iyengar and 8 Others Vs. M.C. Arunachala Pillai and 8 Others - Court Judgment

Excerpt:
(i) trusts and societies - jurisdiction - section 108 of tamil nadu hindu religious and charitable endowments act (amended), 1971 - dispute regarding appointment of 'paricharaka' and installation of 'hundi' to collect offerings of devotees - suit filed by hereditary priest of temple - precedent provides that jurisdiction of civil court not barred under section 108 . (ii) hereditary right - section 55 and 108 of tamil nadu hindu religious and charitable endowments act, 1959 - dispute regarding appointment of paricharaka' and installation of 'hundi' to collect offerings of devotees - evidence prove that hereditary priest entitled to collect padi arisi offered by devotees - defendants restrained from interfering such right of plaintiff - mandatory injunction issued restraining to removal of hundi installed at temple. - - 779 of 1930 as well as in o. , a hundial was installed for collecting cash and grains offered as kanikkai to the deity, that ticket system has been introduced in the temple, that a share out of the ticket collections is given to the plaintiffs as fixed by the authorities, that the plaintiffs have been illegally collecting and misappropriating the grain kanikkai in the form of rice given by the devotees to the deity, that there had been large scale complaint from the devotees in this respect, that on 3,7.1981 the board passed a resolution to install a hundi for the collection of grains intended for the kanikkai for the deity, that on 13.7.1981, hundi was installed, that on 15th august, 1981, the rice in the hundi was used for samabandhi bhojanam and for feeding the poor, that as there was no paricharaka for the preparation of prasadam, the temple had appointed a separate paricharaka for preparation of prasadam on 9.9.1981, that the paricharaka appointed has taken charge and doing the service which cannot be questioorder1. the plaintiffs 1 to 9 who were successful before the trial court and lost before the first appellate court are the appellants in this second appeal. the parties to this appeal will be referred for convenience as arrayed before the trial court.2. at the time of admission, the following substantial question of law was framed by this court:'was not the lower appellate court in error in holding that in view of the decision in ex.b.2, the jurisdiction of the civil court is barred under section 108 of act 22 of 1959 and more particularly in view of the decision of this court in sri thulukka choodamanai mariammam temple etc., v. subramania pandaram, 1986 (99) l.w. 606 ?'3. the plaintiffs pleaded that they are the hereditary poojaries and sthanikars of arulmighu sri prasanna venkataramanaswami temple, chinna thirupathi, that their hereditary rights has been declared in o.s.no. 779 of 1930 as well as in o.s.no. 153 of 1973 on the file of the district munsif court, sankari, that the plaintiffs and their predecessors are and were performing pooja for the last two centuries and more, the plaintiffs not only do the service of archaka but also the service of paricharakam as there is no separate paricharaka, that the defendants 1 to 5 are the trustees, that the 6th defendant is the executive officer and the 7th defendant is the newly appointed paricharaka, that the remuneration paid to the archaka is rs. 2.50 per mensem and rs. 7.50 padi tharam, that the plaintiffs performing pooja by rotation, that during the tamil month of purattasi saturdays all the plaintiffs perform pooja and appropriate the income collected from the devotees on such days, that as per the earlier decrees, the plaintiffs are entitled to appropriate the salary emoluments and offerings attached to their office and divide among themselves, that in addition, the plaintiffs are entitled to receive thattu kasu and padhakanikka offered by the devotees gratuitously, that the temple is a vaishnavite shrine professing thenkalai cult, that in all such thenkalai temples prasadams in the shape of pongal and tamarind bath (......) aredistributed to the devotees who come to the temple for worship, that the devotees offer padi arisi to the deity for being converted into pongal and tamarind bath, for being offered to the deity and for the distribution thereafter to the devotees, the the poojaries are entitled to padi arisi so received, that never in the history of the suit temple padi arisi had been collected by the temple authorities, that it is the duty of the archakas to receive paid arisi and prepare prasadam in the madapalli, that the defendants have installed a grain hundial on 5.8.1981 and insisting the devotees to drop the padi arisi in the separate hundi kept for that purpose and not to hand over the same to the archakas, that the said direction of the defendant is contrary to the customary rights as well as honour enjoyed by the archakas, that the padi arisi is at the range of 1 to 2 kilograms of rice by the devotees, that the defendants have no right to appoint a new paricharaka to cook the padi arisi for the madapalli as the plaintiffs are performing the said service also forgenerations together, that the 7th defendant has no right to enter into the sanctum and perform archana which is being performed exclusively by the plaintiffs are hereditarily in terms of the earlier civil court decrees, that there is no justification to install a new hundi for collection of padi arisi which would be against the custom and usage, that there is an attempt to appoint a vadakalai pattachariar for car festival during brhamautshovam which is impermissible, that the defendants are trying to interfere with the established rights, privileges, honours and service and hence the suit praying for the relief of declaration and for permanent injunction to restrain the defendants from interfering with the plaintiffs right to receive padi arisi and for other consequential reliefs.4. in the written statement filed by the first defendant, it has been admitted that the plaintiffs are the poojaries and sthanigars who have received recognition, that the hereditary right of poojari and sthaniga has been taken away or abolished by tamil nadu act 2 of 1971 by amending the section 55 of the hindu religious and charitable endowments act, that the plaintiffs do not render the service of paricharakam nor they have to prepare the neivethiyam for the madapalli, that the devotees pay grains, cash etc., as kannikkai to the deity, that rice is the popular grain which is being offered to the deity, that rice has to be collected and used for the worship in other temples, that the plaintiffs are not entitled to collect the rice offered to the deity as kannikkai, that the plaintiffs are harassing and coercing the devotees to pay heavy amount for doing poojas, that in order to regulate the administration and improve the temple funds etc., a hundial was installed for collecting cash and grains offered as kanikkai to the deity, that ticket system has been introduced in the temple, that a share out of the ticket collections is given to the plaintiffs as fixed by the authorities, that the plaintiffs have been illegally collecting and misappropriating the grain kanikkai in the form of rice given by the devotees to the deity, that there had been large scale complaint from the devotees in this respect, that on 3,7.1981 the board passed a resolution to install a hundi for the collection of grains intended for the kanikkai for the deity, that on 13.7.1981, hundi was installed, that on 15th august, 1981, the rice in the hundi was used for samabandhi bhojanam and for feeding the poor, that as there was no paricharaka for the preparation of prasadam, the temple had appointed a separate paricharaka for preparation of prasadam on 9.9.1981, that the paricharaka appointed has taken charge and doing the service which cannot be questioned by the plaintiffs, that the civil court has no jurisdiction to try the suit, and the claim made by the plaintiffs falls under section 63(g) of the h.r. & c.e. act, that the suit is barred under section 108 of the tamil nadu hindu religious and charitable endowments act, that the civil court has no jurisdiction to entertain the suit, that the plaintiffs have filed a original application before the deputy commissioner, h.r. & c.e, under section 63(g) of the act, which has since been dismissed, that the plaintiffs have no cause of action, and that there are no merits in the suit claim.5. the other defendants adopted the written statement filed by the first defendant.6. after contest, the trial court granted the reliefs of declaration and injunction as prayed for besides holding that the suit is maintainable and the civil court has jurisdiction to maintain the suit. the trial court had also held that the defendants are liable to pay rs. 100 per month as damages from the date of suit till date of realisation, besides directing the defendants to remove the hundial kept for collection of padi arisi within one month.7. being aggrieved, the defendants 3, 6, 8 and 9 preferred a.s.no. 104 of 1985 on the file of the sub court, sankari. the learned first appellate judge by judgment and decree dated 14th october, 1986 held that the suit is barred under section 108 of the h.r. & c.e. act and the civil court has no jurisdiction to entertain the suit besides holding that the plaintiffs are not entitled to declaration and injunction prayed for by them. it was also pointed out that the original application filed by the plaintiffs under section 63 (g) before the deputy commissioner. h.r. & c.e. coimbatore had been dismissed and the same also constitutes a bar as it has been allowed to become final. being aggrieved. the present second appeal has been preferred.8. heard mrs. jayasree appearing for the appellants and mr. subramaniam appearing for the contesting respondents.9. the learned counsel appearing for either side fairly admitted that amendment to section 55 of the tamil nadu hindu religious and charitable endowments act by tamil nadu act 2 of 1971 provides that on and from the date of publication of the said amending act, the religious office either permanent or temporary among the office holders or servants of a religious institution shall be filled up by the trustees in all cases and no person shall be entitled to appointment to any vacancy merely on the ground that he is next in the line of succession to the last holders of the office. in the light of the said statutory provision, it is admitted that the plaintiffs cannot seek the relief of declaration of their status as hereditary archakas or sthanigars in the suit temple.10. the learned counsel for the appellants confined the relief in respect of the right to receive padi arisi as kanikkai to the plaintiffs while in office. according to the learned counsel such a right to receive padi arisi as kanikkai which is offered during special seasons or on saturdays by the devotees should be allowed to be taken by the plaintiffs who are doing archaka service and that the defendants shall not install a hundi for collection of such kanikkai namely padi arisi. the learned counsel for the appellants placed reliance on the decisions of this court reported in sri thulukka choodamani mani mariamman temple etc., v. subramania pandaram, 1986 (99) l.w. 606, muniandi kone and others v. sri ramanatha sethupathi, hereditary trustee of arulmighu mangalanthaswami temple at ramanthapuram and another, 1981 tlnj 446, kovalakudi singam aiyangar and others v. k. kasturiranga aiyangar and others, 1937 (1) mlj 931, and mooka velar v. baluchami, 1977 (90) l.w. 615.11. the learned counsel for the respondents sought to distinguish the decision reported in sri thulukka choodamani mariamman temple etc., v.subramanian pandaram, 1986 (99) l.w 606 and even contended that the decision in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606 takes a different view from other decisions of this court reported in sadhu sri vaishnavar nambi srinivasa iyengar v. k.k.v. annan srinivasachariar, 1989 (1) l.w. 199, mayalagu ambalam v, mr. pr. karuppiah ambalam, 1991 (2) mlj 21 and sought to contend that the decisions of this court in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606 has no application to the facts of the present case.12. the learned counsel for the respondents also referred to the decision of the apex court in : [1967]1scr280 and contended that the expression 'emoluments' would also cover such as pada kanikkai received by persons doing archaka service and the archaka riot being a hereditary in terms of the provisions of the act is not entitled to receive such kanikkai and each kanikkai should go to the deity alone.13. very many questions have been raised in this appeal which requires consideration. in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606, venkataswamy, j., as he then was, on the facts of the said case while holding that the poojaries in the said temple are entitled to appropriate the coconut bunches and plantain bunches offered by the worshippers during festival time in the month of panguni to the deity of the said temple on the evidence recorded and the findings arrived at by the courts below as it is a time immemorial practice in the said temple, which the learned judge held that it cannot be interfered as a finding of fact.14. in the said decision, venkataswamy, j., as he then was, took the view that the civil court has got the jurisdiction to decide such claims as such claims will not fall under the purview of section 63(g) of the act. the learned judge held thus:'a perusal of these decisions would indicate that the dispute that has been raised in this case by the plaintiffs will not come within the purview of s. 63{e) of the act. the trial court took the view that the offerings amounts to perquisites- the lower appellate court differed from the view taken by the trial court and held that the offerings cannot be treated as perquisites of the office of the poojarship. the lower appellate court relied on a decision in kunj behari lal v. munsammat naraini and others.in my view, the offerings being in the nature of appeasing the goddess through the medium of poojari, and that too on a special occasion, that being not a daily land routine matter, the poojaries are entitled to appropriate the offerings, and this matter in the light of the view expressed by this court in sri vedagiri lakshmi narasimha swami temple v. induru pattabhiramai reddy, and mukku v. venkata reddy, will not come within the purview of section 63(e) of the act. once i come to the conclusion that the dispute raised in this case will not come within the purview of section 63(e) of the act which section alone is relied on by the learned counsel for the appellant, there is no difficulty in holding that section 108 is not a bar to the maintainabilityof the suit. i, therefore, hold that the lower appellate court is right in holding that the suit is not barred under section 108 of. the act.'15. following the decision of venkataswamy, j., as he then was, there is no difficulty in holding that the present suit is maintainable and it is not barred under section 108 of the tamil nadu hindu religious and charitable endowments act.16. ex.b.l will not exclude or disable the plaintiffs from claiming the rights which they seek to enforce before the civil court. that apart even in the earlier litigation between the plaintiffs and the defendant temple in o.s.no. 779 of 1930 and o.s.no. 153 of 1973, the hereditary right of poojari had been declared and certain rights of the plaintiffs and their predecessors have been declared in o.s.no. 779 of 1930 and o.s.no. 153 of 1973. the dismissal of o.a.no. 149 of 1981 as seen from ex.b.2 will not disentitle the plaintiffs from agitating the suit claim before the civil court and this is not being challenged. it has already been declared that the plaintiffs have the hereditary right of poojari and their claim to collect neivethiyam of padi arisi in the earlier proceedings which had not been hither to interfered with, it is to follow that the plaintiffs are entitled to collect paid arisi and the plaintiffs are also entitled to the offerings of padi arisi made by the devotees from time to time using the season which now it is admitted is throughout the year as against the practice of seasonal in origin.17. the jurisdiction of the civil court is not barred under section 108 of the act in the light of the decision of this court reported in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606.18. the learned counsel for the appellant relied upon the decision of mooka velar v. baluchami, 1990 l.w. 615 where sethuraman, j., held that provisions of section 63 of the act will not bar the suit claim there to restrain the defendants from interfering with the right of the plaintiffs to be in management of the suit trust as joint hereditary trustees of the temple, which hereditary trusteeship has already been declared. sethuraman, j., as he then was held thus:'in fact in another decision of this court in rangayya gounder v. karuppa naicker, this court has pointed out that in a case where the plaintiff and the defendant claimed that they were entitled to be trustees of the temple and claimed to have exercised their right hereditarily, the substantive dispute between the parties we as to which of them is entitled to be in management. it was further pointed out that as the dispute centered round as to which of the rival claimants is entitled to celebrate the annual festival, such a dispute cannot fall within the ambit of section 63 of the act and as such the bar under section 108 of the act will not apply. in the present case also, in my opinion, the plaintiffs having already established their right to be in management as hereditary trustees under an earlier decree and the suit being for permanent injunction restraining the defendant from interfering with the plaintiff's right to be in joint management of the suit trust as joint hereditary trustees, the suit was not barred under section 63 read with section 108 of the act. the bar undersection 63 operates against a suit for establishing a hereditary right and not against a suit for enforcing it.'19. the learned counsel for the appellant relied upon the divisions bench judgment of this court reported in kovalakudi singam aiyangar and others v. k. kasturiranga aiyangar and others, 1937 (j) mlj 1931, in support of her contention that the suit is maintainable and the reliefs prayed for is maintainable as the claim is not in respect of the administration or management of the temple in question. in view of the judgment of venkataswamy, j. as he then was, with which judgment this court had respectfully agree and it is not necessary to deal with the earlier divisions bench judgment in detail, as the entire aspect had been considered by the learned judge.20. the learned counsel for the appellate also relied upon the decision of sethuraman, j., in muniandi kone and others v. sri ramanatha sethupathi, hereditary trustee of arulmighu mangalanathaswami temple at ramanathapuram and another, 1981 tlnj 446 in support of her contention that the customary right accrued to the hereditary poojaries shall not be interfered with respect to the collection of poojariship.21. there is substantial and acceptable evidence to hold that the hereditary poojaries had been collecting the padi arisi from time immemorial in the present case and such a right has accrued to them by custom and usage in the temple. the interference of such customary right had been challenged in the suit and the plaintiffs have claimed that they are entitled to receive the padi arisi which is being given by the devotees and collected by the hereditary poojaries.22. for the above reasons this court holds that the suit is not barred and it is maintainable. in the light of the pronouncement of venkataswamy, j., as he then was, in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606, the claim of the plaintiffs will not fall under section 63 and the offerings being in the nature of appeasing the god through the medium of poojari and that too originally on special occasions, which in course of time came to be a regular event, but not on daily basis, this court has to uphold the claim of the poojaries that they are entitled to the offering of padi arisi which will not come within the purview of section 63 of the act.23. the learned counsel for the contesting respondents contended that the expression 'perquisites' denotes something that benefits a man by going 'into his pocket' which is attached to the office. the learned counsel for the respondent also relied upon the decision of ratnam, j., reported in sadhu sri vaishnavar nambi srinivasa iyengar v. k.k.v. annan srinivasachariar, 1989 (1) l.w. 199, and the decision of srinivasan, j., reported in mayalagu ambalam v. mr. pr. karuppiah ambalam, 1991 (2) mlj 21, to contend that the suit is not maintainable.24. in mayalagu ambulam v. mr. pr. karuppiah ambalam, 1991 (2) mlj 21 the court was concerned with a claim of a person to worship and to receive thiruneeru and theeratham first in preference to others and it was held that unless such honours are attached as an emolument to a religious office, a claim therefor will not be cognisable by a civil court, which is not the case here. on other other hand in the present case the plaintiffs are admittedly hereditary poojaries and the right to receive the paid arisi is a right attached to the said office by way of custom and usage as substantiated by the plaintiffs.25. the decision by ratnam, j., in mayalagu ambalam v. mr. pr. karuppiah ambalam, 1991 (2) mlj 21 on the facts of that case is distinguishable from the law laid down by venkataswamy, j., as he then was in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606, ratnam, j., had occasion to consider the case of the plaintiff where he has not sought to establish his right to any office in the temple and to honours and privileges attached to the said office as remuneration or perquisites and in that context it has been held that the suit is not maintainable, whereas in the present case the rights of hereditary poojaries had already been declared in the earlier round of litigations and as there was an attempt to collect the padi arisi from the hereditary poojaries by the office holders the present suit has been filed.26. in the light of the decision of venkataswamy, j., in sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606, this court holds that the suit is maintainable and it is not barred. no other point has been urged and no other decision to the contra to sri thulukka choodamani mariamman temple etc., v. subramanian pandaram, 1986 (99) l.w. 606 has been cited before this court.27. in the foregoing circumstances, the second appeal is allowed and the substantial question of law is answered in favour of the appellants declaring that the plaintiffs are entitled to receive padi arisi offered by the devotees to shri prasanna venkataramanaswami, also called as chinna thirupathi venkataramanaswami, karuvalli village, salem district and the respondents shall not interfere with the rights of the plaintiffs collecting the padi arisi which is offered to the deity through the medium hereditary poojaries and sthanigars in the 6th respondent temple and consequently there will be a mandatory injunction directing the defendants to remove the hundial located in the 6th defendant temple for collection of padi arisi from the devotees which hundial, if any exists, shall be removed within one month from today, failing which the plaintiffs will be entitled to execute the decree and remove the hundial fixed for collection of padi arisi in the 6th defendant temple.28. the appeal is allowed and there will be a decree as indicated above in the suit o.s.no. 853 of 1981 on the file of the district munsif court, mettur both the parties shall bear their respective costs throughout.

Judgment:
ORDER

1. The plaintiffs 1 to 9 who were successful before the trial court and lost before the first appellate court are the appellants in this second appeal. The parties to this appeal will be referred for convenience as arrayed before the trial Court.

2. At the time of admission, the following substantial question of law was framed by this Court:

'Was not the lower appellate court in error in holding that in view of the decision in Ex.B.2, the jurisdiction of the civil court is barred under section 108 of Act 22 of 1959 and more particularly in view of the decision of this Court in Sri Thulukka Choodamanai Mariammam Temple etc., v. Subramania Pandaram, 1986 (99) L.W. 606 ?'

3. The plaintiffs pleaded that they are the hereditary Poojaries and sthanikars of Arulmighu Sri Prasanna Venkataramanaswami Temple, Chinna Thirupathi, that their hereditary rights has been declared in O.S.No. 779 of 1930 as well as in O.S.No. 153 of 1973 on the file of the District Munsif Court, Sankari, that the plaintiffs and their predecessors are and were performing pooja for the last two centuries and more, the plaintiffs not only do the service of Archaka but also the service of Paricharakam as there is no separate Paricharaka, that the defendants 1 to 5 are the Trustees, that the 6th defendant is the Executive Officer and the 7th defendant is the newly appointed Paricharaka, that the remuneration paid to the Archaka is Rs. 2.50 per mensem and Rs. 7.50 padi tharam, that the plaintiffs performing pooja by rotation, that during the Tamil month of Purattasi Saturdays all the plaintiffs perform pooja and appropriate the income collected from the devotees on such days, that as per the earlier decrees, the plaintiffs are entitled to appropriate the salary emoluments and offerings attached to their office and divide among themselves, that in addition, the plaintiffs are entitled to receive Thattu Kasu and Padhakanikka offered by the devotees gratuitously, that the temple is a Vaishnavite Shrine professing Thenkalai cult, that in all such Thenkalai Temples Prasadams in the shape of Pongal and Tamarind Bath (......) aredistributed to the devotees who come to the temple for worship, that the devotees offer Padi arisi to the Deity for being converted into Pongal and Tamarind Bath, for being offered to the Deity and for the distribution thereafter to the devotees, the the Poojaries are entitled to padi arisi so received, that never in the history of the suit temple padi arisi had been collected by the temple authorities, that it is the duty of the Archakas to receive paid arisi and prepare prasadam in the Madapalli, that the defendants have installed a grain hundial on 5.8.1981 and insisting the devotees to drop the padi arisi in the separate hundi kept for that purpose and not to hand over the same to the Archakas, that the said direction of the defendant is contrary to the customary rights as well as honour enjoyed by the Archakas, that the padi arisi is at the range of 1 to 2 kilograms of rice by the devotees, that the defendants have no right to appoint a new Paricharaka to cook the padi arisi for the Madapalli as the plaintiffs are performing the said service also forgenerations together, that the 7th defendant has no right to enter into the sanctum and perform archana which is being performed exclusively by the plaintiffs are hereditarily in terms of the earlier Civil Court decrees, that there is no justification to install a new Hundi for collection of padi arisi which would be against the custom and usage, that there is an attempt to appoint a Vadakalai Pattachariar for car festival during Brhamautshovam which is impermissible, that the defendants are trying to interfere with the established rights, privileges, honours and service and hence the suit praying for the relief of declaration and for permanent injunction to restrain the defendants from interfering with the plaintiffs right to receive padi arisi and for other consequential reliefs.

4. In the written statement filed by the first defendant, it has been admitted that the plaintiffs are the poojaries and sthanigars who have received recognition, that the hereditary right of poojari and sthaniga has been taken away or abolished by Tamil Nadu Act 2 of 1971 by amending the Section 55 of the Hindu Religious and Charitable Endowments Act, that the plaintiffs do not render the service of paricharakam nor they have to prepare the neivethiyam for the madapalli, that the devotees pay grains, cash etc., as kannikkai to the deity, that rice is the popular grain which is being offered to the deity, that rice has to be collected and used for the worship in other temples, that the plaintiffs are not entitled to collect the rice offered to the deity as kannikkai, that the plaintiffs are harassing and coercing the devotees to pay heavy amount for doing poojas, that in order to regulate the administration and improve the temple funds etc., a hundial was installed for collecting cash and grains offered as kanikkai to the deity, that ticket system has been introduced in the temple, that a share out of the ticket collections is given to the plaintiffs as fixed by the authorities, that the plaintiffs have been illegally collecting and misappropriating the grain kanikkai in the form of rice given by the devotees to the deity, that there had been large scale complaint from the devotees in this respect, that on 3,7.1981 the Board passed a resolution to install a Hundi for the collection of grains intended for the kanikkai for the deity, that on 13.7.1981, Hundi was installed, that on 15th August, 1981, the rice in the Hundi was used for samabandhi bhojanam and for feeding the poor, that as there was no paricharaka for the preparation of prasadam, the temple had appointed a separate paricharaka for preparation of prasadam on 9.9.1981, that the Paricharaka appointed has taken charge and doing the service which cannot be questioned by the plaintiffs, that the Civil Court has no jurisdiction to try the suit, and the claim made by the plaintiffs falls under section 63(g) of the H.R. & C.E. Act, that the suit is barred under section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, that the Civil Court has no jurisdiction to entertain the suit, that the plaintiffs have filed a original application before the Deputy Commissioner, H.R. & C.E, under section 63(g) of the Act, which has since been dismissed, that the plaintiffs have no cause of action, and that there are no merits in the suit claim.

5. The other defendants adopted the written statement filed by the first defendant.

6. After contest, the trial court granted the reliefs of declaration and injunction as prayed for besides holding that the suit is maintainable and the civil court has jurisdiction to maintain the suit. The trial court had also held that the defendants are liable to pay Rs. 100 per month as damages from the date of suit till date of realisation, besides directing the defendants to remove the hundial kept for collection of padi arisi within one month.

7. Being aggrieved, the defendants 3, 6, 8 and 9 preferred A.S.No. 104 of 1985 on the file of the Sub Court, Sankari. The Learned first Appellate Judge by judgment and decree dated 14th October, 1986 held that the suit is barred under section 108 of the H.R. & C.E. Act and the Civil Court has no jurisdiction to entertain the suit besides holding that the plaintiffs are not entitled to declaration and injunction prayed for by them. It was also pointed out that the original application filed by the plaintiffs under section 63 (g) before the Deputy Commissioner. H.R. & C.E. Coimbatore had been dismissed and the same also constitutes a bar as it has been allowed to become final. Being aggrieved. the present second appeal has been preferred.

8. Heard Mrs. Jayasree appearing for the appellants and Mr. Subramaniam appearing for the contesting respondents.

9. The learned counsel appearing for either side fairly admitted that amendment to Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act by Tamil Nadu Act 2 of 1971 provides that on and from the date of publication of the said amending Act, the religious office either permanent or temporary among the office holders or servants of a religious institution shall be filled up by the Trustees in all cases and no person shall be entitled to appointment to any vacancy merely on the ground that he is next in the line of succession to the last holders of the office. In the light of the said statutory provision, it is admitted that the plaintiffs cannot seek the relief of declaration of their status as hereditary Archakas or sthanigars in the suit temple.

10. The learned counsel for the appellants confined the relief in respect of the right to receive padi arisi as kanikkai to the plaintiffs while in office. According to the learned counsel such a right to receive padi arisi as kanikkai which is offered during special seasons or on Saturdays by the devotees should be allowed to be taken by the plaintiffs who are doing Archaka service and that the defendants shall not install a Hundi for collection of such kanikkai namely padi arisi. The learned counsel for the appellants placed reliance on the decisions of this Court reported in Sri Thulukka Choodamani Mani Mariamman Temple etc., v. Subramania Pandaram, 1986 (99) L.W. 606, Muniandi Kone and others v. Sri Ramanatha Sethupathi, Hereditary Trustee of Arulmighu Mangalanthaswami Temple at Ramanthapuram and another, 1981 TLNJ 446, Kovalakudi Singam Aiyangar and others v. K. Kasturiranga Aiyangar and others, 1937 (1) MLJ 931, and Mooka Velar v. Baluchami, 1977 (90) L.W. 615.

11. The learned counsel for the respondents sought to distinguish the decision reported in Sri Thulukka Choodamani Mariamman Temple etc., v.Subramanian Pandaram, 1986 (99) L.W 606 and even contended that the decision in Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606 takes a different view from other decisions of this court reported in Sadhu Sri Vaishnavar Nambi Srinivasa Iyengar v. K.K.V. Annan Srinivasachariar, 1989 (1) L.W. 199, Mayalagu Ambalam v, Mr. Pr. Karuppiah Ambalam, 1991 (2) MLJ 21 and sought to contend that the decisions of this Court in Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606 has no application to the facts of the present case.

12. The learned counsel for the respondents also referred to the decision of the Apex Court in : [1967]1SCR280 and contended that the expression 'emoluments' would also cover such as pada kanikkai received by persons doing Archaka service and the Archaka riot being a hereditary in terms of the provisions of the Act is not entitled to receive such kanikkai and each kanikkai should go to the deity alone.

13. Very many questions have been raised in this appeal which requires consideration. In Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606, Venkataswamy, J., as he then was, on the facts of the said case while holding that the poojaries in the said temple are entitled to appropriate the coconut bunches and plantain bunches offered by the worshippers during festival time in the month of Panguni to the deity of the said temple on the evidence recorded and the findings arrived at by the courts below as it is a time immemorial practice in the said temple, which the Learned Judge held that it cannot be interfered as a finding of fact.

14. In the said decision, Venkataswamy, J., as he then was, took the view that the civil court has got the jurisdiction to decide such claims as such claims will not fall under the purview of Section 63(g) of the Act. The Learned Judge held thus:

'A perusal of these decisions would indicate that the dispute that has been raised in this case by the plaintiffs will not come within the purview of S. 63{e) of the Act. The trial Court took the view that the offerings amounts to perquisites- The lower appellate Court differed from the view taken by the trial Court and held that the offerings cannot be treated as perquisites of the office of the Poojarship. The lower appellate court relied on a decision in Kunj Behari Lal v. Munsammat Naraini and others.

In my view, the offerings being in the nature of appeasing the Goddess through the medium of Poojari, and that too on a special occasion, that being not a daily land routine matter, the Poojaries are entitled to appropriate the offerings, and this matter in the light of the view expressed by this Court in Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhiramai Reddy, and Mukku v. Venkata Reddy, will not come within the purview of Section 63(e) of the Act. Once I come to the conclusion that the dispute raised in this case will not come within the purview of Section 63(e) of the Act which section alone is relied on by the learned counsel for the appellant, there is no difficulty in holding that Section 108 is not a bar to the maintainabilityof the suit. I, therefore, hold that the lower appellate court is right in holding that the suit is not barred under Section 108 of. the Act.'

15. Following the decision of Venkataswamy, J., as he then was, there is no difficulty in holding that the present suit is maintainable and it is not barred under section 108 of the Tamil Nadu Hindu Religious and Charitable Endowments Act.

16. Ex.B.l will not exclude or disable the plaintiffs from claiming the rights which they seek to enforce before the Civil Court. That apart even in the earlier litigation between the plaintiffs and the defendant temple in O.S.No. 779 of 1930 and O.S.No. 153 of 1973, the hereditary right of poojari had been declared and certain rights of the plaintiffs and their predecessors have been declared in O.S.No. 779 of 1930 and O.S.No. 153 of 1973. The dismissal of O.A.No. 149 of 1981 as seen from Ex.B.2 will not disentitle the plaintiffs from agitating the suit claim before the Civil Court and this is not being challenged. It has already been declared that the plaintiffs have the hereditary right of poojari and their claim to collect Neivethiyam of padi arisi in the earlier proceedings which had not been hither to interfered with, it is to follow that the plaintiffs are entitled to collect paid arisi and the plaintiffs are also entitled to the offerings of padi arisi made by the devotees from time to time using the season which now it is admitted is throughout the year as against the practice of seasonal in origin.

17. The jurisdiction of the civil court is not barred under section 108 of the Act in the light of the decision of this court reported in Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606.

18. The learned counsel for the appellant relied upon the decision of Mooka Velar v. Baluchami, 1990 L.W. 615 where Sethuraman, J., held that provisions of Section 63 of the Act will not bar the suit claim there to restrain the defendants from interfering with the right of the plaintiffs to be in management of the suit trust as joint hereditary trustees of the temple, which hereditary trusteeship has already been declared. Sethuraman, J., as he then was held thus:

'In fact in another decision of this court in Rangayya Gounder v. Karuppa Naicker, this Court has pointed out that in a case where the plaintiff and the defendant claimed that they were entitled to be trustees of the temple and claimed to have exercised their right hereditarily, the substantive dispute between the parties we as to which of them is entitled to be in management. It was further pointed Out that as the dispute centered round as to which of the rival claimants is entitled to celebrate the annual festival, such a dispute cannot fall within the ambit of Section 63 of the Act and as such the bar under Section 108 of the Act will not apply. In the present case also, in my opinion, the plaintiffs having already established their right to be in management as hereditary trustees under an earlier decree and the suit being for permanent injunction restraining the defendant from interfering with the plaintiff's right to be in joint management of the suit trust as joint hereditary trustees, the suit was not barred under Section 63 read with Section 108 of the Act. The bar underSection 63 operates against a suit for establishing a hereditary right and not against a suit for enforcing it.'

19. The learned counsel for the appellant relied upon the Divisions Bench Judgment of this court reported in Kovalakudi Singam Aiyangar and others v. K. Kasturiranga Aiyangar and others, 1937 (J) MLJ 1931, in support of her contention that the suit is maintainable and the reliefs prayed for is maintainable as the claim is not in respect of the administration or management of the Temple in question. In view of the judgment of Venkataswamy, J. as he then was, with which judgment this Court had respectfully agree and it is not necessary to deal with the earlier Divisions Bench judgment in detail, as the entire aspect had been considered by the learned Judge.

20. The learned counsel for the appellate also relied upon the decision of Sethuraman, J., in Muniandi Kone and others v. Sri Ramanatha Sethupathi, Hereditary Trustee of Arulmighu Mangalanathaswami Temple at Ramanathapuram and another, 1981 TLNJ 446 in support of her contention that the customary right accrued to the hereditary poojaries shall not be interfered with respect to the collection of poojariship.

21. There is substantial and acceptable evidence to hold that the hereditary poojaries had been collecting the padi arisi from time immemorial in the present case and such a right has accrued to them by custom and usage in the temple. The interference of such customary right had been challenged in the suit and the plaintiffs have claimed that they are entitled to receive the padi arisi which is being given by the devotees and collected by the hereditary poojaries.

22. For the above reasons this court holds that the suit is not barred and it is maintainable. In the light of the pronouncement of Venkataswamy, J., as he then was, in Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606, the claim of the plaintiffs will not fall under Section 63 and the offerings being in the nature of appeasing the God through the medium of Poojari and that too originally on special occasions, which in course of time came to be a regular event, but not on daily basis, this Court has to Uphold the claim of the poojaries that they are entitled to the offering of padi arisi which will not come within the purview of Section 63 of the Act.

23. The learned counsel for the contesting respondents contended that the expression 'perquisites' denotes something that benefits a man by going 'into his pocket' which is attached to the office. The learned counsel for the respondent also relied upon the decision of Ratnam, J., reported in Sadhu Sri Vaishnavar Nambi Srinivasa Iyengar v. K.K.V. Annan Srinivasachariar, 1989 (1) L.W. 199, and the decision of Srinivasan, J., reported in Mayalagu Ambalam v. Mr. Pr. Karuppiah Ambalam, 1991 (2) MLJ 21, to contend that the suit is not maintainable.

24. In Mayalagu Ambulam v. Mr. Pr. Karuppiah Ambalam, 1991 (2) MLJ 21 the court was concerned with a claim of a person to worship and to receive Thiruneeru and Theeratham first in preference to others and it was held that unless such honours are attached as an emolument to a religious office, a claim therefor will not be cognisable by a civil court, which is not the case here. On other other hand in the present case the plaintiffs are admittedly hereditary poojaries and the right to receive the paid arisi is a right attached to the said office by way of custom and usage as substantiated by the plaintiffs.

25. The decision by Ratnam, J., in Mayalagu Ambalam v. Mr. Pr. Karuppiah Ambalam, 1991 (2) MLJ 21 on the facts of that case is distinguishable from the law laid down by Venkataswamy, J., as he then was in Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606, Ratnam, J., had occasion to consider the case of the plaintiff where he has not sought to establish his right to any office in the temple and to honours and privileges attached to the said office as remuneration or perquisites and in that context it has been held that the suit is not maintainable, whereas in the present case the rights of hereditary poojaries had already been declared in the earlier round of litigations and as there was an attempt to collect the padi arisi from the hereditary poojaries by the office holders the present suit has been filed.

26. In the light of the decision of Venkataswamy, J., in Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606, this Court holds that the suit is maintainable and it is not barred. No other point has been urged and no other decision to the contra to Sri Thulukka Choodamani Mariamman Temple etc., v. Subramanian Pandaram, 1986 (99) L.W. 606 has been cited before this Court.

27. In the foregoing circumstances, the second appeal is allowed and the substantial question of law is answered in favour of the appellants declaring that the plaintiffs are entitled to receive padi arisi offered by the devotees to Shri Prasanna Venkataramanaswami, also called as Chinna Thirupathi Venkataramanaswami, Karuvalli village, Salem District and the respondents shall not interfere with the rights of the plaintiffs collecting the padi arisi which is offered to the deity through the medium hereditary poojaries and sthanigars in the 6th respondent temple and consequently there will be a mandatory injunction directing the defendants to remove the hundial located in the 6th defendant temple for collection of padi arisi from the devotees which Hundial, if any exists, shall be removed within one month from today, failing which the plaintiffs will be entitled to execute the decree and remove the hundial fixed for collection of padi arisi in the 6th defendant temple.

28. The appeal is allowed and there will be a decree as indicated above in the suit O.S.No. 853 of 1981 on the file of the District Munsif Court, Mettur Both the parties shall bear their respective costs throughout.