SRI MARTHANDA VARMA (D) THR. LRS. & ANR. versus STATE OF KERALA & ORS. on 13 July 2020

SUPREME COURT REPORTS

[2020] 9 S.C.R.

ASRI MARTHANDA VARMA (D) THR. LRs. & ANR.

v.

STATE OF KERALA & ORS.

(Civil Appeal No. 2732 of 2020)

BJULY 13, 2020

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Travancore-Cochin Hindu Religious Institutions Act, 1950 –Chapter III of Part-I, Sections 18 to 23 – Constitution of India –Arts. 363 and 366 (22) – Sree Padmanabhaswamy Temple –CShebaitship or the managership of the temple – There are manyversions as regard to the origin and how the temple was set up,however, every version accepts that the King of Travancore had arole in the administration of the temple – After a major fire incidentoccurred in the year 1686, it was the king who re-constructed theDtemple and installed a new idol and took full control of the temple –Since then the management of the temple was with the king ofTravancore – Thereafter, a Covenant was entered into by the rulersof Travancore and Cochin with the Government of India on27.05.1949 and 29.05.1949 respectively – Art. VIII(b) of theCovenant preserved the administrative right of the ruler ofETravancore in respect of the Sree Padmanabhswamy temple – TheConstitution of India made certain provisions with regard to privypurse payable to the rulers in terms of any Covenant entered intoby the ruler of the State – Soon after the coming into force of theConstitution, the Travancore-Cochin Hindu Religious InstitutionsFAct, 1950 was enacted and Chapter III of Part-I of the samecomprising of Sections 18 to 23 deals specifically with SriPadmnabhaswamy temple – Then came the Constitution (Twenty SixthAmendment) Act, 1971 which deleted Arts. 291 and 362 and insertedArt. 363A which now expressly stipulates, inter-alia, that any personwho was recognised as ruler or successor, and all rights, liabilitiesGand obligation in respect of Privy purses stand extinguished – On19.07.1991, the ruler who had executed the Covenant passed away– Since then, the appellant no. 1, younger brother of the deceasedruler had been exercising all the functions as ‘Ruler of Travancore’with respect to the affairs of the temple – A writ petition was filed byH

a advocate before the High Court to issue a writ of quo warrantodirecting appellant no. 2, the Executing Officer (appointed by theruler of Travancore as per covenant) to show the authority underwhich he was holding the post of Executing Officer of the temple –Thereafter, another writ petition was filed by the appellants referringto the relevant Articles of the Covenant – Also, there were civil suitspending, which challenged the authority of the appellants hereinwith the affairs of the temple – Whether the appellant no.1-youngerbrother of the last ruler of Travancore could after the death of thelast ruler on 19.07.1991 claim to be the ‘ruler of Travancore’ withinthe meaning of the term contained in s.18(2) of the 1950 Act toclaim ownership, control and management of the SreePadmanabhaswamy Temple – The High Court held that neitherappellant no. 1 nor any of the successors of his family can claimcontrol or management of the temple u/s. 18(2) of the 1950 Act andthe State Government was directed to constitute a body corporateor trust or other legal authority to take control of the temple –Aggrieved, the appellants filed appeal before the Supreme Court –Held: The Supreme Court has laid down that when the idol isinstalled and the temple is constructed or an endowment is founded,the shebaitship is vested in the founder and unless the founder himselfhas disposed of the shebaitship in a particular manner or there issome usage or custom or circumstances showing a different modeof devolution, the shebaitship like any other species of heritableproperty follows the line of inheritance from the founder, and it isnot open to the Court to lay down a new rule of succession or alterthe rule of succession – In the instant case, the shebaitship or themanagership of the temple passed on to the succeeding kings, comingfrom the royal family of Travancore and represented a continuousand unbroken line of successive shebaits from the original founder– The Art. VIII of the Covenant acknowledged and accepted in thelatter part of Sub-Article (b) of Art. VIII of the covenant that theadministration in respect of the temple was already vested in theruler of the Covenanting State of Travancore – Therefore, when theCovenant was entered into by the Ruler of the Covenanting State ofTravancore, apart from other incidents which normally follow therulership, he was holding the office of Shebait of the Temple andrepresented a continuous and unbroken line of successive Shebaitstraced from the original founder – Insofar as the Constitution AB

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A(Twenty Sixth Amendment) Act, 1971 is concerned, despite thisamendment, the private properties of the ruler would continue to beavailable for normal succession and devolution in accordance withthe law and custom – Though the concepts such as Ruler or Rulershiphave ceased to operate, succession to the Gaddi as an incident maystill operate – So, the Constitution (Twenty Sixth Amendment) Act,B1971 did not affect the administration of the temple – Therefore,the death of the last ruler who signed the Covenant would not inany way affect the Shebaitship of the Temple held by the royal familyof Travancore, that after such death, the shebaitship must devolvein accordance with the applicable law and custom appearing inCChapter III Part-I of the 1950 Act must include his natural successorsaccording to law and customs.Travancore-Cochin Hindu Religious Institutions Act, 1950 –Sree Padmanabhaswamy Temple – Constitution of AdministrativeCommittee and Advisory Committee – A Note was given by theDappellants about the composition an Administrative Committee andan Advisory Committee to take care of the affairs of the Temple – Itwas suggested, inter-alia, that the Administrative Committee shallconsist of five members: a) a retired Indian Administrative ServiceOfficer of the rank of Secretary to Government of Kerala to benominated by the Trustee in consultation with Government of KeralaEwho shall be the Chairperson of the Committee; (b) one membernominated by the trustee; (c) one member nominated by theGovernment of Kerala; (d) one member nominated by the Ministryof Culture, Government of India; and (e) the Chief Thantri of thetemple – Held: The suggestions made by the appellants in their Note Fwith regard to the constitution of the Administrative Committee andthe Advisory Committee is accepted subject to the modification withrespect to the Chairperson of the Administrative Committee – A minorchange in the Administrative Committee is made – Instead of a retiredIndian Administrative Service Officer of the rank of Secretary to the Government of Kerala as the Chairperson of the AdministrativeGCommittee, in the interest of justice, the District Judge,Thiruvananthapuram shall be the Chairperson of the AdministrativeCommittee.Words and Phrases :‘Shebait’ – meaning of – The expressionShebait is derived from “Sewa” which means service and shebait,H

in literal sense, means one who renders “sewa” to the idol or adeity.

Disposing of the matters, the Court

HELD: 1. In the backdrop of the facts and circumstanceson record, the issues concerning the status and entitlement ofthe appellant No.1 including the relationship vis-a-vis the Templeare concerned, the controversy can be considered under thefollowing five segments:- A] Situation obtaining before and upto the date when theCovenant was entered into in May 1949.

B] Effect of the Covenant that was entered into in May1949.

C] Effect of the Constitution of India as it stood before theConstitution (Twenty-Sixth Amendment) Act, 1971 and of theprovisions of the Travancore-Cochin Hindu Religious InstitutionsAct, 1950 (TC Act).

D] Effect of the Constitution (Twenty-Sixth Amendment)Act, 1971.

E] Effect of the death of the person who had signed theCovenant as the Ruler of Travancore. [Para 50][1078-C-E]

2. A] Situation obtaining before and upto the date when theCovenant was entered into in May 1949

2.1 Though there may be different accounts and beliefs withregard to the origin and how the Temple was set up, every versionaccepts that the King of Travancore had a role in theadministration of the Temple to begin with, and that he was theone who re-constructed the Temple after a major fire thatoccurred in the year 1686, and installed a new idol and took fullcontrol of the Temple. The King of Travancore was thusresponsible for setting up the Temple, in the form that it standstoday, and it was the King who installed the new idol, and sincethen the management of the Temple, till the Covenant was signed,had always been with the Kings of Travancore. [Para 54][1080-G-H; 1081-A]

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A2.2. Tested on any parameter, such as historical accounts,popular and customary beliefs, certain practices connected withthe rituals and affairs of the Temple that mandatorily require thepresence and participation of the Ruler, deep involvement of themembers of ruling family and their connection with the Templeand Sri Padmanabhaswamy at various stages of their lives, “TheBThrippati Danam” and its significance, and long recognised andaccepted fact that the management of the Temple had always beenwith the Ruler, leads this Court to conclude that for centuries,the Temple had been under the exclusive management ofsuccessive Rulers from the ruling family of Travancore and thatCthe Rulers of Travancore, till the signing of the Covenant, werein the capacity as Managers or Shebaits of the Temple.[Para 60][1085-G-H; 1086-A-B]

2.3 As laid down by this Court in various decisions, whenthe idol is installed and the temple is constructed or an endowmentDis founded, the shebaitship is vested in the founder and unlessthe founder himself has disposed of the shebaitship in a particularmanner or there is some usage or custom or circumstancesshowing a different mode of devolution, the shebaitship like anyother species of heritable property follows the line of inheritancefrom the founder; and it is not open to the Court to lay down aEnew rule of succession or alter the rule of succession. It has alsobeen laid down that the shebaitship has the elements of officeand property, of duties and personal interest blended togetherand they invest the office of the shebait with the character ofproprietary right. It has further been laid down that the shebaitFis the custodian of the idol, its earthly spokesman and the humanministrant; is entitled to deal with the temporal affairs and tomanage the property of the idol; and even where no emolumentsare attached to the office of the shebait, he has the right or interestin the endowed property which has the characteristics of aproprietary right. [Para 73][1110-G-H; 1111-A-B]G

2.4 If the instant case is considered on the touchstone ofthese settled principles, it is clear that after the major fire thatoccurred in the year 1686, the Temple was reconstructed and anew idol was installed by the then King of Travancore and sincethen right upto the day the Covenant was signed, the managementHof the Temple had always been with the Kings of Travancore.

The shebaitship or the managership of the Temple passed on tothe succeeding Kings, coming from the royal family of Travancore.This chain was unbroken till the then Ruler of Travancore signedthe Covenant in May 1949. [Para 73][1111-C]

2.5 This Court must thus conclude that as on the day whenthe Covenant was entered into by the Ruler of the CovenantingState of Travancore, apart from other incidents which normallyfollow the rulership, he was holding the office of Shebait of theTemple and represented a continuous and unbroken line ofsuccessive Shebaits traced from the original founder; and beinga Shebait of the Temple, he was having all the rights and interestas laid down by decisions of the Courts. [Para 74][1111-F-G]

3. B] Effect of the Covenant that was entered into in May1949

3.1 Sub-Article ‘b’ of Article VIII used the expression “nowvested in trust in the Ruler of the Covenanting State of Travancore”and thus acknowledged the factum that the administration inrespect of the Temple, Sri Pandaravaga properties and all otherproperties and funds of the Temple was already vested in theRuler of Covenanting State of Travancore. Sub-Article ‘b’ furthercontemplated that with effect from the appointed day, theadministration of the Temple, Sri Pandaravaga properties and allother properties and funds of the Temple would be subject to thecontrol and supervision of the “Ruler of Travancore”. This Sub-Article was the centre of debate and fulcrum of submissions bythe counsel appearing for various parties. [Para 77][1114-D-E]

3.2 What then would be the import of the expression “theRuler of Travancore” in the latter part of Sub-Article ‘b’ of ArticleVIII is the question that needs to be addressed.

The only place in the Covenant where the person whosigned as the Ruler of the Covenanting State would continue toenjoy his erstwhile powers as the Head of that Covenanting State,was Article XXI. The references as “the Ruler of the CovenantingState” and as the Ruler of Travancore or as “the Ruler of Cochin”

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Ain rest of the Articles, were only by way of reference to the personconcerned, and not by way of reference to or because of his officialcapacity as the Ruler. This gets fortified by proviso to Sub-Article‘d’ of Article VIII, in terms of which “the Ruler of Cochin” wouldcontinue to exercise regulation and control with respect to ritualsand ceremonies in certain temples. Upon the Covenant comingBinto effect, he had lost his capacity as the Head of the erstwhileState of Cochin. Thus, the retention of the powers under saidproviso in him was not because he had any official status as Headof the State after the appointed day in terms of the Covenant butonly with a view to describe and locate the person concerned. ACperson answering the description in said proviso would continueto exercise such power. Similar thought can, therefore, be validlyentertained that the description in the latter part of Sub-Article‘b’ of Article VIII was only to refer to or locate the person.

Furthermore, the historical background and theDassociation of the royal family with the Temple and the nature ofShebaitship held by a successive line of Rulers from time to time,were such that the Covenant designedly let the management ofthe affairs of the Temple – with the royal family, and in the handsof the Ruler of Travancore, principally because his official capacityor status as the erstwhile Head of the State apparently had nothingEto do with the capacity as Shebait of the Temple.

It is also pertinent to note here that other Devaswomsand Endowments in the erstwhile State of Travancore also usedto be under the control of the erstwhile Ruler of Travancore.Going by the Travancore Interim Constitution Act, though suchFcontrol was to be retained by the ruling family, the Covenantexpressed clearly to the contrary. Sub-Article ‘c’ of Article VIIIacknowledged that administration with respect to said otherDevaswoms and Endowments and other properties was earlierunder the management of the Ruler of the Covenanting State ofGTravancore. It, however, stated that with effect from theappointed day in terms of the Covenant, such management wouldnow vest in Travancore Devaswom Board. This part also findsmention in the relevant paragraphs of the White Paper.

Thus, wherever the official capacity of the Head of theHState was responsible for enabling the Ruler to be in charge of the management or administration, upon ceasing to have suchcapacity, the erstwhile Ruler would have nothing to do with themanagement of such other Devaswoms or Endowments. Incontrast, the case with respect to the Temple and other propertiesreferred to in Sub-Article ‘b’ stands on a completely differentfooting. [Para 79][1115-F-H; 1116-A-C; 1119-D-F]

3.3 In the premises, it must be held that the expression“the Ruler of Travancore” used in the latter part of Sub-Article‘b’ of Article VIII was only by way of reference and the purport ofsaid Sub-Article was not to invest the said authority and powerbecause he was the Ruler or enjoyed and represented any officialstatus. [Para 79][1119-H]

3.4 The Article VIII of the Covenant not only acknowledgedand accepted the factum that the administration with respect tothe Temple, its properties, as well as with respect to Pandaravagaproperties, had already vested in “the Ruler of the CovenantingState of Travancore”, but the said Article expressly continuedthe same status and stipulated that such administration shall beconducted subject to the supervision and control of “the Rulerof Travancore”. [Para 81][1121-A-B]

4. C] Effect of the Constitution of India as it stood before-the Constitution (TwentySixth Amendment) Act, 1971 and ofthe provisions of TC Act 4.1 Art. 291 of the Constitution of India dealt with PrivyPurses payable to the Rulers and stipulated that if under anycovenant or agreement entered into by the Ruler of any IndianState, any sums were guaranteed or assured by the Governmentof the Dominion of India to be paid as Privy Purse, the sums inthat behalf would be charged on and paid out of the ConsolidatedFund of India and that the sums so paid to any Ruler would beexempt from all taxes on income. Article 362 of the Constitutionof India stipulated that in the exercise of the power of Parliament,or of the Legislature of a State, to make laws or in the exercise oftheir respective executive powers, due regard shall be had tothe guarantee or the assurance given under any such covenantor agreement, as was referred to in Art. 291 of the Constitutionof India, with respect to personal rights, privileges and dignitiesof the Ruler of an Indian State.

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AArt. 366(22) defined the expression “Ruler” to mean, interalia, one who had signed the Covenant referred to in Article 291and who, for the time being, was recognized by the President ofIndia to be the Ruler of that State and would include successor tosuch Ruler. It may be stated here that there is no dispute thatthe Ruler of Travancore who signed the Covenant was recognizedBby the President of India to be the Ruler of Travancore. Article363, which has remained unamended, speaks of “Bar tointerference by Courts in disputes arising out of certain treaties,agreements etc.” [Para 82][1121-D-G; 1122-A]

4.2 Soon thereafter, the TC Act came into force. TheCrelevant provisions of the TC Act have already been extractedearlier. Chapter III of the TC Act specifically dealt with SreePadmanabhaswamy Temple and matters pertaining to theadministration of the Temple. Said Chapter III of the TC Act isconsistent with the latter part of Sub-Article ‘b’ of Article VIII ofDthe Covenant and stipulates inter alia that the administration ofthe Temple, Sri Pandaravaga properties and all other propertiesand funds of the Temple “vested in trust in the Ruler ofTravancore” and the sum of Rs.6 lakhs contributed in terms ofSub-Section 1 of Section 18 of the TC Act shall be conducted,“subject to the control and supervision of the Ruler ofETravancore” by an Executive Officer appointed by him. SaidChapter III did not confer any right or benefit for the first time,where none existed earlier but gave statutory recognition to whatwas acknowledged and accepted in the latter part of Sub-Article‘b’ of Article VIII of the Covenant to be the continuing status.FSection 20 of the TC Act then deals with the constitution of SreePadmanabhaswamy Temple Committee, which is also in tune withsaid Article VIII of the Covenant. [Para 83][1122-B-D]

4.3 Insofar as the present segment is concerned, it must,therefore, be concluded that the relevant provisions of theGConstitution of India as well as that of the TC Act did not, in anyway, upset or abridge the status enjoyed by the Ruler ofTravancore as Shebait of the Temple and also did not, in anymanner, adversely impact the right of administration vested inthe Ruler of Travancore. As a matter of fact, the relevant H

provisions of the TC Act afforded statutory flavour to the statuscontemplated by Article VIII of the Covenant. [Para 86][1130-F-G]

-5. D] Effect of the Constitution (TwentySixth Amendment)Act, 1971

5.1 The assurances and guarantees given in the covenantsor agreements entered into with various Rulers normally hadfour elements; i) that certain sums shall be payable to the Rulersby way of Privy Purses; ii) that certain properties mentioned asprivate properties of the Ruler would vest in the Ruler in hispersonal capacity; iii) that succession to the Gaddi would go strictlyby the prevalent law and custom; and iv) that personal rights,privileges and dignities enjoyed by the Rulers and in some casesby the members of the family of the Ruler, would continue to beavailable. [Para 91][1137-B-C]

5.2 Out of the aforesaid four elements, the elements (i)and (iv) were covered by Articles 291 and 362 as they stood beforebeing deleted. The effect of such deletion has been discussedand dealt with. The elements (ii) and (iii) are normal incidentswhich were not within the scope of said Articles 291 and 362.Despite the Constitution (Twenty-Sixth Amendment) Act, 1971,the private properties of the Ruler would continue to be availablefor normal succession and devolution in accordance with the lawand custom. Though concepts such as Ruler or Rulership haveceased to operate, succession to the Gaddi as an incident maystill operate. For instance, there could be a sword or any otherceremonial weapon, or a sarpech, or heirloom jewellery, whichmust go by rule of primogeniture, as against the normal way ofsuccession with regard to other personal properties. All suchincidents have not been terminated. [Para 92][1137-D-F]

5.3 These four elements were covered by Articles XIV, XV,XVII and XVI respectively in the Covenant in the present case.However, apart from the said four assurances, the Covenant alsodealt with an additional and important aspect in Article VIII(b).It accepted and acknowledged that the administration withrespect to the Temple, Sri Pandaravaga properties, and the A

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Aproperty of the Temple which was also vested in the Ruler of theCovenanting State would continue to be conducted in the mannerstipulated therein, subject to the control and supervision of theRuler of Travancore. The effect of such Article and the fact thatsuch vesting was not in the capacity as Ruler has already beendealt with. It has also been concluded that the expression “TheBRuler of Travancore” was only to locate and describe the personwho would be in control and supervision of the administration.[Para 93][1137-H; 1138-A-C]

5.4 In the premises, this Court must conclude that theConstitution (Twenty -Sixth Amendment) Act, 1971 did not inCany way impact or affect the administration of the Temple, SriPandaravaga properties and the properties of the Temple, whichcontinued to be under the control and supervision of the Ruler ofTravancore. [Para 94][1138-C-D]

6. E] Effect of the death of the person who had signed theDCovenant as the Ruler of the Covenanting State of Travancore 6.1 In the instant case, since the Shebaitship had vested inthe Ruler of Travancore, not in his official capacity, the normalincident of heritability must get attached to the office of suchShebaitship in accordance with governing principles of successionEand custom. Therefore, when it comes to the matter concerningthe administration of the Temple, Sri Pandavaraga properties andthe properties of the Temple, the expression “the Ruler ofTravancore” as appearing in Chapter III of Part I of TC Act mustmean the successor in accordance with the prevalent law andFcustom. In the process one need not go to the definition of Rulereither under Art. 366(22) or under Art. 363 of the Constitution ofIndia. Consistent with the principles that have been culled in thevarious established judgments of the Courts after the death ofthe person who was in control and supervision of theadministration, the heritable interest must devolve in accordanceGwith the customary rights. [Para 105][1142-G; 1143-A-B]

6.2 In the circumstances, this Court holds that the death ofthe last ruler who had signed the Covenant, would not in any wayaffect the Shebaitship of the Temple held by the royal family ofTravancore; that after such death, the Shebaitship must devolveHin accordance with the applicable law and custom upon his A

successor; that the expression “Ruler of Travancore” asappearing in Chapter III of Part I of the TC Act must include hisnatural successors according to law and custom; and that theShebaitship did not lapse in favour of the State by principle ofescheat. [Para 107][1147-C-D]

7. The provisions of the TC Act with respect to theadministration of the Temple are clear:- B

A. Under Section 18(2), the administration shall beconducted. “Subject to the control and supervision of the Rulerof Travancore, by an Executive Officer appointed by him.”

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B. “Sree Padmanabhaswamy Temple Committee”composed of three members nominated by the Ruler ofTravancore in terms of Section 20 is to advise the Ruler ofTravancore in the discharge of his functions.

The Statute has thus vested the power of appointing theExecutive Officer and of forming the Advisory Committee, in theDRuler of Travancore.

In the Note, the appellants have stated:-

(i) “The Trustee shall delegate his powers of administrationunder Section 18(2)” to the Administrative Committee which“shall administer the Temple through an Executive Officer to beappointed by the Committee”.

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(ii) On all policy matters, the Trustee shall be guided bythe advice of the Advisory Committee. [Para 113][1156-C-F]

8. Having given anxious consideration to the rivalsuggestions, the composition of the Committees as suggestedby the appellants (Note adverted in detail in paragraph 47 of thejudgment) deserves acceptance, especially in light of theconclusions arrived by this Court that the Managership or theShebaitship of the Temple continues with the Family. As againstthe administration contemplated by Chapter III of Part I of theTC Act in the hands of the Ruler of Travancore in absolute terms,the course now suggested by the appellants is quite balanced.The Composition of the Administrative Committee as suggestedis broad based and would not be loaded in favour or against the F

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ATrustee. However, considering the fact that the present interimAdministrative Committee headed by the District Judge is inseisin for the last more than five years, and various District Judgesas Chairpersons of the Committee conducted themselves quitewell, in view of this Court, a minor change in the AdministrativeCommittee suggested by the appellants in their Note is calledBfor. Instead of a retired Indian Administrative Service Officer ofthe rank of Secretary to the Government of Kerala as theChairperson of the Administrative Committee, in the interest ofjustice, the District Judge, Thiruvananthapuram shall be theChairperson of the Administrative Committee. Needless to sayCthat the present Chairperson of the Interim AdministrativeCommittee shall continue to be the Chairperson so long as heholds the post of the District Judge, Thiruvananthapuram. Thecomposition of the Advisory Committee will ensure that theadministration of the Temple is conducted in a fair and transparentmanner. [Para 114][1156-F-H; 1157-A-C]D

Revathinnal Balagopala Varma v. His Highness ShriPadmanabha Dasa Bala Rama Varma (since deceased)and Others (1993) 1 Suppl. SCC 233 : [1991] 3 Suppl.SCR 30; The Commissioner, Hindu ReligiousEndowments, Madras v. Sri Lakshmindra ThirthaESwamiar of Sri Shirur Mutt [1954] SCR 1005;M. Siddiq (dead) through LRs v. Mahant Suresh Dasand Others (Ram Janmabhumi Temple Case) (2020) 1SCC 1; Maharaja Pravir Chandra Bhanj Deo Kakatiyav. The State of Madhya Pradesh [1961] 2 SCR 501;FRani Ratna Prova Devi v. State of Orissa and Another[1964] 6 SCR 301– followed.

Mahant Sital Das v. Sant Ram and Others AIR 1954SC 606; His Holiness Digya Darshan Rajendra RamDoss v. Devendra Doss (1973) 1 SCC 14 : [1973] 2GSCR 911; Profulla Chorone Requitte v. Satya ChoroneRequitte (1979) 3 SCC 409 : [1979] 3 SCR 431;Angurbala Mullick v. Debabrata Mullick [1951] SCR1125; Kutchi Lal Rameshwar Ashram Trust Evam AnnaKshetra Trust v. Collector, Haridwar (2017) 16 SCC418 : [2017] 9 SCR 766 – relied on.

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Deep Chand and Others v. State of U.P. and Others[1959] 2 Suppl. SCR 8; Sawai Tej Singhji of Alwar v.

SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS.

Union of India (1979) 1 SCC 512 : [1979] 2 SCR 62 –held inapplicable.

Madhav Rao Jivaji Rao Scindia v. Union of India(1971) 1 SCC 85 : [1971] 3 SCR 9; RaghunathraoGanpatrao v. Union of India (1994) 1 Suppl. SCC 191:[1993] 1 SCR 480; Renusagar Power Co. Ltd. v.General Electric Company and Ors. (1984) 4 SCC 679:[1985] 1 SCR 432; Bala Shankar MahashankarBhattjee and Others v. Charity Commissioner, GujaratState (1995) 1 Suppl. SCC 485 : [1994] 2 Suppl. SCR687; Tilkayat Shri Govindlalji Maharaj v. The State ofRajasthan and Others [1964] 1 SCR 561; National andGrindlays Bank Ltd. v. Municipal Corporation ofGreater, Bombay (1969) 1 SCC 541 : [1969] 3 SCR565; Desh Bandhu Gupta and Co. and Others v. DelhiStock Exchange Association Ltd. (1979) 4 SCC 565 :[1979] 3 SCR 373 – referred to.

Gossamee Sree Greedharreejee v. RumanlolljeeGossamee 16 M.I.A.137 : (1889) L.R. 16 I.A. 137;Ganesh v. Lal Behary (1935-36) 63 I.A. 448; BhabaTarini Debi v. Asha Lata Debi AIR 1943 PC 89 : (1943)ILR 2 P.C. 137; Vidya Varuthi Thirtha Swamigal v.Balusami Ayyar and Ors. AIR 1922 PC 123 –referred to.

Manohar Mukherjee v. Bhupendra Nath Mukherjeeand Ors. I.L.R (1993) 60 Cal. 452 – referred to.

“Sree Padamanabhaswamy Temple” authored byPrincess Aswathi Thirunal Gouri Lakshmi Bayi –referred to.

“History of Sri Padamanabhasvami Temple till 1758”by Dr. A.G. Menon – referred to.

“The Hindu Law of Religious Endowments andCharitable Trusts”Edited by Hon. P.B.–Gajendragadkar, former Chief Justice of India referred to.

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988SUPREME COURT REPORTS

[2020] 9 S.C.R.

AWhite Paper on the Indian States prepared in July 1948and updated in March 1950 by the Government of India,Ministry of States – referred to.

CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION: Civil Appeal No. 2732 of 2020.

GFrom the Judgment and Order dated 31.01.2011 of the High Courtof Kerala at Ernakulam in Writ Petition (C) No. 36487 of 2009.

With

Civil Appeal No. 2733 of 2020, Writ Petition (C) No. 518 of 2011and Contempt Petiton (C) No. 493 of 2019 in SLP(C) No. 12361 ofH2011.

Krishnan Venugopal, Arvind P. Datar, Ms. Aishwarya Bhati,P. N. Ravindran, Sr. Advs., Kuriakose Varghese, V. Shyamohan, GauravRay, Udai Rathore, Surya Prakash, Pratap Venugopal, Ms. SurekhaRaman, Ms. Viddushi, Akhil Abraham Roy, Sahil Singh, M/s. K.L. John& Co., J. Sai Deepak, Suvidutt M.S., Avinash K. Sharma, Ms. ShaktikiSharma, Ms. Smita Pandey, Yogesh Kumar, G. Prakash, Jishnu M.L.,Ms. Priyanka Prakash, Ms. Beena Prakash, P.B. Suresh, KarthikJayashankar, Vikrant Yadav, Rajat Nair, B.K. Satija, Raj Bahadur, V. K.Sidharthan, Karri Venkata Reddy, Ms. Anil Katiyar, P. S. Sudheer, RishiMaheshwari, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose, N.P.Rakeesh Panicker, Ranbir Singh Yadav, Nishad L.S., Ms. Anzu K.Varkey, Ms. Manju Jetley, M.K.S. Menon, Shashank Menon, VishnuSharma, K. R. Sasiprabhu, Nishe Rajen Shonker, Mrs. Anu K. Joy, AlimAnvar, Reegan S. Bel, Ms. Usha Nandini V., Biju P. Raman, M.S. VishnuSankar, Ravi Prakash Mehrotra, Ms. Deepti R. Mehrotra, Ankit Agarwal,Venkita Subramoniam T.R, Rahat Bansal, Varun Mudgal, Rajesh Kumar,Ms. S. Geetha, Ms. Smitha Rani, Abid Ali Beeran P., Sarath S. Janaradnan,R. Sathish, Mohan Das K.K., B. Rajesh, Anupam Lal Das, BalajiSrinivasan, Sumit Attri, Ranjan Kumar, M. P. Devanath, K. Rajeev,Gautam Narayan, M. P. Vinod, Ms. Liz Mathew, Ramesh Babu M. R.,Advs. for the appearing parties.

Dr. M. Velayudhan Nair, Party-in-Person.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Leave granted in Special Leave Petition (Civil) No.11295 of2011 and Special Leave Petition (Civil) No.12361 of 2011.

2. Sree Chithira Thirunal Balarama Varma who as Ruler ofCovenanting State of Travancore had entered into a Covenant in May1949 with the Government of India leading to the formation of the UnitedState of Travancore and Cochin, died on 19.07.1991. His younger brotherUthradam Thirunal Marthanda Varma and the Executive Officer of SriPadmanabhaswamy Temple, Thiruvananthapuram (hereinafter referredto as ‘the Temple’) as appellants 1 and 2 respectively have filed theseappeals challenging the judgment and order dated 31.01.2011 passed bythe High Court[1] in Writ Petition (Civil) No.36487 of 2009 and in WritPetition (Civil) No.4256 of 2010.

1 The High Court of Kerala at Ernakulum

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1 The High Court of Kerala at Ernakulum

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AA) Writ Petition (C) No.36487 of 2009 was filed by one T.P.Sundara Rajan, a practising Advocate praying that the High Court bepleased to issue a Writ of Quo Warranto directing the appellant No.2herein to show the authority under which he was holding the post ofExecutive Officer of the Temple and that the State be directed to takeimmediate steps to administer the Temple on the lines of GuruvayoorBDevaswom. The Writ Petition was filed by the licensee of premisesbelonging to the Temple, against whom the management had taken stepsfor eviction.

B) Thereafter Writ Petition (Civil) No.4256 of 2010 was filed bythe present appellants. After referring to relevant Articles of the CovenantCentered into between the Ruler of the Covenanting State of Travancoreand the Central Government which Covenant is dealt with in extensohereinafter, it was submitted:- “Acknowledging the terms contained in the Covenant theGovernment of the United State of Travancore and Cochin enactedDAct 15 of 1950, the Travancore Cochin Hindu Religious InstitutionsAct, 1950 (hereinafter referred to as ‘Act’) which was lateracknowledged by the State of Kerala, as evidenced by lateramendments making specific provisions in relation to SreePadmanabhaswamy Temple and its properties and itsEadministration. Chapter II of Part I of the Act deals with theTravancore Devaswom Board, Section 2(c) defines theincorporated and unincorporated Devaswom, which says that‘incorporated Devaswoms’ means the Devaswoms mentioned inthe schedule 1 and ‘unincorporated Devaswoms’ means thoseDevaswoms including Hindu Religious Endowments whether inFor outside Travancore which were under the management of theMaharaja of Travancore and are separately dealt with.

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7. The right of the Maharaja that existed prior to the execution ofthe Covenant Ext. P1, which is nothing but the sovereign right, tocontrol and supervise the administration of the Temple, thePandaravaka properties etc. are insulated from they being madethe subject matter of attacks before Courts, including The SupremeCourt by Article 363 of the Constitution-Construing the Articlethe Supreme Court has held that no dispute touching the subject G

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matter of a covenant etc., shall be entertained by courts includingthe Supreme Court. The only remedy is the one prescribed byArticle 143.

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10. The above-mentioned rights, privileges, status etc. of the 1[st]petitioner vis-à-vis of the Padmanabhaswamy temple the 2[nd]petitioner, guaranteed by the Central Government, as discerniblefrom Ext. P1 and preserved and protected by Article 363 of theConstitution, notwithstanding, a few members of the public withthe backing of certain political parties, have filed a representativeSuit O.S. 625/2007 for a permanent prohibitory injunctionrestraining the second petitioner from opening the six Kallaras(cellars) inside the Nalambalam.”

The Writ Petition prayed that Original Suit Nos.625 of 2007, 1618of 2009 and 1831 of 2009 be transferred by the High Court to itself andthe same be disposed of on the basis of the preliminary issue regardingmaintainability.

i) Original Suit No.625 of 2007 was filed in the Court of SubordinateJudge, Thiruvananthapuram alleging that the plaintiffs (respondents 3and 4 in appeal arising out of SLP (Civil) No.12361 of 2011) wereaggrieved by the state of affairs prevailing in the Temple and prayed,inter alia, for following reliefs:- “A. A decree of permanent prohibitory injunction restraining thedefendants, his agents, henchmen or any other person claiming tohave any right in the affairs or the Temple from opening the sixKallara (cellars) inside the nalambalam which is plaint B scheduleherein or take any articles from the Cellar in any form, in anymanner or for any purpose or act in any manner detrimental tothe interest of the deity or the devotees.

B. To pass a decree of mandatory injunction removing all articlesbrought inside the temple that is plaint A schedule by the 2[nd]defendant against the customs, practice and traditions at his ownexpenses or in the alternative permit the plaintiffs to remove thesame at their own expenses and to recover the same from thedefendants and their assets.

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SUPREME COURT REPORTS

PLAINT SCHEDULE PROPERTIES

PLAINT “A” SCHEDULE

Sree Padmanabhaswamy Temple situated inside the Fort Areawith eight entrances spread over a sprawling 7.04 acres of landtogether with numerous buildings, temples and all other thingsattached thereto of Vanchiyoor Village, Trivandrum Taluk,Trivandrum District.

PLAINT “B” SCHEDULE

a. Kallara No.1 on the southern side of the Nalambalam insidethe chandanamandapam.

b. Kallara No.2 on the South west corner outside thechandanamandapam inside the nalambalam.

c. Kallara No.3 on the north western side inside theNalambalam.

d. Kallara No.4 on the northern side inside the Nalambalam

e. Kallara No.5 inside the Sreekovil on the northern side nextto the idol for Vishwaksenar.

f. Kallara No.6 inside the Sreekovil on the south eastern cornertowards the exit gate to Thekkedom NarasimhamoorthyTemple.”

ii) Original Suit No.1618 of 2009 was filed by one of the employeesof the Temple and prayed:- “(A) To declare that Defendants 3 & 4 have no authority to actas office bearers of Sree Padmanabha Swami Temple as it islegally held that they have no authority to occupy their positions,… … and for the same, necessary directions may be given toDefendants 1 & 2 about their illegal occupation.

(B) To pass a decree of permanent prohibitory injunctionrestraining the 3[rd] and 4[th] Defendants from forcibly obstructingthe plaintiff from discharging her duties as an employee whichshe is carrying out for the past 20 years or from doing any actwhich is detrimental to the interest of the Plaintiff in doing herlawful work and for which the Defendants 3 & 4 have no legalauthority.

(C) To pass a decree of permanent prohibitory injunction restrainingthe 3[rd] and 4[th] defendants from doing any act which affects herjob as a Computer Operator in Ticket Counter attached to SreePadmanabha Swami Temple.”

iii) Original Suit No.1831 of 2009 was filed in the Court of Munsiff,Thiruvananthapuram by General Secretary of “Sree PadmanabhaswamyTemple Staff Organisation” (respondent No.6 in appeal arising out ofSLP (Civil) No.12361 of 2011) claiming following reliefs:- “A. To pass a decree declaring the orders, no.5/SPST/09 dated10.06.2009 and 14.07.2009 issued by the 2[nd] defendant creatingthe post of “Administrative Officer” and thereby posted the 3[rd]defendant in the said post, as void and non est, since it was doneby the 2[nd] defendant without any authority, by manifestly floutingthe Rules prevailing in the Temple and without legal sanctity.

B. To pass a decree of mandatory injunction directing the 2[nd]defendant to remove the 3[rd] defendant from the post to which hehas been assumed charges, failing which the 3[rd] defendant maybe removed by the intervention of this Hon’ble Court.”

3. In the Suits, the authority of the appellants herein to be associatedwith the affairs of the Temple was under challenge, while the verymaintainability of the Suits was questioned by the appellants. The basicissue that arose for consideration was framed by the High Court in thejudgment under appeal as:-

“The Central issue arising in these two connected W.P. Is iswhether the younger brother of the last Ruler of Travancore couldafter the death of the last Ruler on 20.07.1991 claim to be the“Ruler of Travancore” within the meaning of that term containedin Section 18(2) of the Travancore-Cochin Hindu ReligiousInstitutions Act, 1950 (hereinafter called “the TC Act”) to claimownership, control and management of the ancient and greatTemple in Kerala namely, the Sree Padmanabha Swamy Templelocated in Trivandrum.”

The High Court concluded that after the definition of ‘Ruler’appearing in Article 366 (22) of the Constitution of India was amendedby the Constitution (Twenty Sixth Amendment) Act, 1971, the appellantNo.1 could not claim to be in control or management of the Temple as A

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Asuccessor to the last Ruler. The High Court thereafter issued the followingdirections:- “i) There shall be a direction to the State Government toimmediately take steps to constitute a body corporate or trust orother legal authority to take over control of the SreeBPadmanabhaswamy Temple, it’s assets and management and torun the same in accordance with all the traditions hitherto followed.This shall be done within a period of three months from now.

ii) There will be an order of injunction against petitioners in W.P.(C)No.4256/2010 who are respondents 3 and 5 in the other W.P.(C)against opening of any of the Kallaras or removing any of thearticles from the Temple. However, they are free to use such ofthe articles required for rituals, ceremonies and regular poojas inthe Temple until Temple is taken over by the Authority as statedabove.

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iii) There will be direction to the authority constituted by theGovernment to open all Kallaras, make inventory of the entirearticles and create a Museum and exhibit all the treasures of theTemple for the public, devotees and the tourists to view the samewhich could be arranged on payment basis in the Temple premisesitself. The first petitioner in W.P.(C) No.4256/2010 and thesuccessors from the Royal Family should be permitted toparticipate in the rituals in the Temple like the Arattu Procession,which is symbolic of the presence of the “Padmanabhadasa” inthe Festival.

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iv) Considering the valuables and treasures in the Temple, theGovernment should consider handing over security of the Templeto a team of Police or atleast provide assistance to the Templesecurity staff.

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The Government should ensure that the opening of Kallaras(storage places) and the preparation of inventory are done by aGteam of responsible and honest officers either from theGovernment or from the authority constituted to manage theTemple in terms of the directions above so that there should notbe any allegation of pilferage or manipulation. Inventory shouldbe prepared in the presence of the petitioners in W.P.(C) No.4256/

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SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

2010 or their agents towards proof of the items taken over fromtheir custody.”

The appellants, being aggrieved, are in appeal.

4. The history of the Temple was set out by the High Court duringthe course of its judgment, and some of the relevant extracts of thediscussion were:-

“4. Before proceeding to consider the legal issues raised and thejurisdiction of the lower courts and that of this Court which arealso issues raised before us based on Article 363 of the Constitution,we have to briefly state the history of the Sree Padmanabha SwamyTemple. Even though the origin of the Temple is shrouded inantiquity and different versions are stated by different Authors,the modern history of this Great Temple starts with AnizhamThirunal Marthandavarma who established the modern TravancoreState which was previously known as Venad. For over 200 yearsprior to the re-establishment of the Princely State and taking overof management of the Temple and the State by Marthandavarma,the Temple was under the control of “Ettarayogam” (group ofeight and a half) consisting of seven pottis (Brahmins), one Nairchieftain and the King who had only half a vote, whereas all othershad one vote each. While the committee of Potties controlled theTemple, the properties of the Temple were managed by EttuveettilPillamars, the 8 Nair chieftains belonging to eight big familiesspread over in different villages of the State. The King was a lowkey functionary in the Committee managing the Temple and hehad only a very limited authority with half a vote……

….The Ettuveettil Pillamars with the help of Brahmins inmanagement of the Temple plotted against Marthandavarmabecoming the King and they tried to instal the previous King’s sonas the new King in deviation of the practice of the nephew of theKing namely, Marthandavarma becoming the King. However, inthe protracted battle that followed between the heir to the thronenamely, Marthandavarma and his loyalists on the one side and theEttuveettil Pillamars, the Brahmins, and the King’s son’s loyalistson the other side, Marthandavarma succeeded……

…Marthandavarma took over full control of the State and thePadmanabha Swamy Temple and it is he who reconstructed the A

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ATemple which was in bad shape after a major fire that took placeyears back and installed a new idol. In fact, the King surrenderedhis Kingdom to the presiding Deity namely, Padmanabha Swamyand declared himself the Dasa or servant of the Lord and assumedthe name “Padmanabhadasa”. Marthandavarma ruled Travancorefrom 1729 to 1758 and after him also the Temple continued to beB”under the direct management and control of the King.

5. The act of surrender or dedication of the entire kingdom toSree Padmanabhaswamy as referred to by the High Court has beenCdescribed in a book[2] titled “Sree Padmanabha Swamy Temple” authoredby Princess Aswathi Thirunal Gouri Lakshmi Bayi as under:- “Thrippati Danam – 5[th] of Makaram 925-ME/1750 AD

Fifth Makaram 925 ME/19[th] or 20[th] January 1750 AD (Wednesdayasterism Revait) stood witness to the act of a sublime dedication,Dthe ultimate offering possible for a crowned head, carried out insupreme devotion – the Thrippati Danam.[3]

Like Arjuna before the Kurukshetra War and Emperor Ashokaafter the Kalinga War, the futility of battles as a means to an endand the conscious feeling that the Travancore he created wasEbuilt on a foundation of sacrifice of the liver and limbs of countlessnumbers who fell due to him and for him, deeply disturbed anddistressed the Maharaja[4]. Along with the love which offeredMarthanda Varma no satiation however much he might submit tohis Lord, this trauma also activated him to surrender to God theFThiruvithamcoor (Travancore) stretching from Kanyakumari toParavoor which he had won and made.

Before this dedication certain religious ceremonies like PoornaKalasa Homam, invoking the Deity, and so on were performed,followed later by Mahabhishekam.[5 ]Maharaja Anizhom ThirunalMarthanda Varma arrived at the appointed time in the morningG

2 Published by Bharatiya Vidya Bhavan

3 1. Mathilakam Records.

2. Dr. A. G. Menon – ‘History of Sri Padmanabhasvami Temple Till 1758’

3. Many historical works (too many to be listed.

4 Sree Uthradom Thirunal Marthanda Varma Maharaja of Travancore H

5 Dr. A.G. Menon – ‘History of Sri Padmanabhasvami Temple Till 1758’

accompanied by all male and female members of his family, histrusted Dewan Ramayyan and other officials. In the presence ofthe Swamiyar, members of the yogam and Brahmins, the Maharajais submitted to Sree Padmanabha Prajapati by Deed of Giftcarrying his signature, his entire State of Travancore along withhis total right on it thereof by placing the Crown, the royal umbrella,the twin white chauries (fans), the Manikandha; which were allsymbols of royalty along with some Thulasi leaves on theMandapam. Last but most significant, his famous sword, whichhad lashed its unleashed valour in countless battle fields, theunquestioned insignia of sovereign authority which the King valuedthe most, was also placed with utmost reverence by the Maharajaon the step of the Ottakkal Mandapam leading to the sanctum.Then the King received the sword back from the high priest andreturned to the Palace after worship. His directive that any furtherconquest of territory brought under the rule of Travancore by hissuccessors should also be surrendered to Sree PadmanabhaSwamy was accepted and scrupulously adhered to with deeprespect by the later generations.”

The English Translation of the Original Deed of Dedication whichwas drawn up in Malayalam is as under:- “We, Thrippappoor Keezhperur Veera Bala Marthanda Varma,Mootha Thiruvati (Senior member) of Thrippappoor and SreePandarakaryam Cheyvarkal, have this day, Wednesday the 5[th]day of the month of Thai, the seventh day of the bright lunarfortnight with Saturn residing in the eighth sign and Jupiter in thetwelfth, Kollam 925, transfer by absolute gift and dedication, toendure as long as the Sun and Moon shall last, all the lands andfunctions appertaining thereto together with all rights and dignities,positions of honour and all other possessions that we have beenhitherto enjoying as of right within the territories between theThovala Fort in the East and the Kavana River in the West, infavour of Perumal Sree Padmanabha Perumal. In token whereofwe have this day executed this deed of absolute gift anddedication.”

Before dealing with “Thrippati Danam” or Dedication as statedabove, the Author had stated:- ABC

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A“The Royal Family had always been famous for the abundanceand lavish nature of the gifts and offerings the members pouredat the feet of Sree Padmanabha Swamy down the ages, from thehoary past to the pulsating present. These varied from small orroutine offerings to ones of considerable value but there seems tobe no offering in the known religious history of the world whichBmerits any comparison in the sheer magnitude of emotional anddevotional worth, to the Thrippati Danam[6 ]submitted by SreeAnizhom Thirunal Maharaja Marthanda Varma on the fifth dayof the month of Makaram 925 ME/19[th] or 20[th] of January 1750AD. Tradition had it all along, even before this Act, that the maleCmembers of the Royal Family, at the age of one, were laid on theOttakkal Mandapam and surrendered to Sree PadmanabhaSwamy as his own, gaining for them the supreme title of ‘SreePadmanabha Dasa.’[7] Those were individual submissions whereasthis collective offering of the entire State by Marthanda Varmastands all by itself. Thenceforth he ruled the land as the DasaD(slave) of Sree Padmanabha Swamy in letter and spirit.”

6. After having observed that the Temple continued to be underthe direct management and control of the Kings of Travancore, the HighCourt made following observations about the other Devaswoms and theTemple:-E

“While the Great Sree Padmanabhaswamy Temple was directlyunder the control of the Travancore King, all the major temples inTravancore were under private ownerships. Every temple hadlarge extent of properties, but all such properties were in the handsof tenants who were not properly paying rent or revenue. DuringF

6 1. Thrippati Danam mean the Danam made on the holy step. This offering was doneby the King along with other emblems of the royalty, when he, after certain ritualsplaced his royal and historic sword, the symbol of sovereign authority, on the step ofthe Ottakkal Mandapam connecting the sanctum and made over the entire State ofTravancore to Perumal Sree Padmanabha Perumal as ‘Sarva Samarpana Danam’ –Gtotal gift submission (Anything placed on this Mandapam becomes Temple property).2. Mathilakam Records – Churuna 21, Ola 89.

3. V. Nagam Aiya – The State Manual of Travancore

4. P. Shangoonny Menon – A History of Travancore 7 Two common misconceptions exist,

1. That the Sree Padmanabha Dasas came into being with Thrippati Danam and 2. That the title of Sree Padmanabha Dasa rests only with the seniormost maleHmember of the family. As is clear form above both are incorrect.

the reign of Travancore by the two Ranis successively namely,Gouri Lakshmi Bhai (1810-15) and Gouri Parvathy Bhai (1815-29), Colonel Monroe was the British resident in Travancore. Hevirtually usurped the powers of the Diwan and the weak Raniswere not able to resist him. Colonel Monroe found that the onlyway to augment the revenue of Travancore State is to bring theentire temples under the State’s control and in turn, restore theproperties that belong to the temples to the control of the State. Itis under his advice Gouri Lakshmi Bhai issued the Proclamationon 17.9.1811 whereby all the major Hindu temples in Travancorewere brought under the King. Thereafter the temple propertieswere also restored to the State and the temples and the landswere brought under the Land Revenue Department. This resultedin improved collection of revenue from the lands and there wasconsiderable augmentation and stability of the State finances. Infact, vast extent of properties of the Sree PadmanabhaswamyTemple were also restored to it and the financial position of thistemple also improved. The temple had such surplus that in the19[th] century for the needs of the State, Travancore Kings used tosteadily borrow funds from the Sree Padmanabhaswamy Templeon repayment basis and the loans were repaid with interest. Eversince the major temples and their lands were brought under thecontrol of the Queen through the Proclamation above referredissued in September 1811, the arrangement continued until thetaking over of the Government temples by the TravancoreDevaswom Board under the TC Act of 1950. The only changethat happened in between was during the rule of Sree MoolamThirunal Ramavarma who handed over the temples and theproperties from Revenue Department of the State to theDewaswom Department of the Government, from which it wastaken over by the Travancore Devaswom Board on it’s constitution.From the history of the temples in Travancore which we havetaken from the book written by Dr. R. Madhu Devan Nair andpublished by the Travancore Devaswom Board, what is clear isthat for over one and a half centuries the temples were under theGovernment Departments and thereafter under the DevaswomBoard constituted under the TC Act.

So far as the Sree Padmanabhaswamy Temple is concerned, theonly difference is that the temple was under the direct control of ABC

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Athe Travancore King. However, this temple was also treated as aState/public temple and was never regarded as private propertyof the Travancore King or as his family property. The system ofthe Travancore King running the Temple continued during theperiod of the last ruler who was the King from 1931 to 1949 whenthe Agreement of Accession was signed integrating the PrincelyBStates of Travancore and Cochin as one and bringing theTravancore-Cochin as Part B State under the Constitution.Government of India was also a signatory to the Agreement ofAccession signed between the Kings of Travancore and Cochinconstituting the Travancore Cochin State. An authentic statementCabout the history, status and position of this Temple is available inthe book “Integration of Indian States” written by Sri. V. P. Menonwho played an important role in the integration of Indian Statesand who represented Union Government as a signatory to theTravancore-Cochin Accession Agreement...”

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7. Mr. V. P. Menon who was the Constitutional Advisor to theGovernor General till 1947 and Secretary to the Ministry of States playeda stellar role in the integration of the princely States into the Dominion ofIndia. In his book titled, “Story of Integration of the Indian States”, Mr.EMenon dealt with “Travancore – Cochin” in Chapter XIV and he wrote:- “The ruling family of Travancore traces its descent from the ancientChera kings of South India. In later historic times, Travancorewas split up into a number of petty principalities. The consolidationof these into a single State was the achievement of RajahFMarthanda Varma, who ruled in the first half of the eighteenthcentury. He brought the whole of Travancore under his sway,established order and settled the country. In January 1750, heformally and solemnly dedicated the State to Sri Padmanabha,the tutelary deity of his family; and he and his successors haveever since ruled as ‘Dasas’, or servants of that deity. The presentGruler, Sir Rama Varma[8] succeeded to the gaddi in 1924 at theage of twelve and was invested with full ruling powers inNovember 1931. During his rule the revenues of the State were 8 His titles are: Major-General. Sri Padmanabha Dasa, Vanchipala, Sir Bala Rama Varma,Kulasekhara Kiritapati, Manney Sultan, Maharaja Raja Rama raja Bahadur, ShamsherHJang.

SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

nearly quadrupled from a little over Rs. 2.5 crore to over Rs. 9.5crore.

The present Maharajah of Cochin, Sir Rama Varma, is, on theother hand, well advanced in age. In fact, for over a century, theMaharajahs of Cochin had all been fairly old when they succeededto the gaddi. The ruling family of Cochin claims to be directlydescended from Cheraman Perumal, who once ruled Kerala.Hyder Ali and later Tippu Sultan overran the territories of Cochinin the latter half of the eighteen century, and this brough about analliance with the English East India Company when, in 1791, theMaharajah agreed to become their tributary.

The ruling families in both the States follow theMarumakkathayam law, or the law of inheritance through thefemale line. The Maharajah, assuming that he has no brother, issucceeded by his sister’s eldest son. This is generally the lawfollowed by the majority of the Malayalam-speaking Hindus inboth States.

He added that he governed the State on behalf and as a servantof Sri Padmanabha and that he attached great importance to thisposition being maintained; that if no satisfactory solution on thesepoints was possible, and if the Government of India still insistedon the integration of the two States he would rather abdicate thanact against his convictions.

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Lastly, he felt that on account of the dedication of the State to SriPadmanabha and the special loyalty and devotion which the rulersof Travancore owed to that deity, it would not be possible for himto take the usual oath of office as Rajpramukh.

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I reached Trivandrum on 21 May and had several meetings withthe Maharajah. I told him that, with goodwill on both sides, therewas no reason why we should not come to an agreement. Thefirst hurdle was the Maharajah’s inability to take the oath of officeas head of the State. The devotion of the present Maharajah to AB

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Sri Padmanabha borders on fanaticism; he rules the State not asits head but as a servant of the tutelary deity.

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A problem peculiar to Travancore-Cochin related to the propertiesattached to temples, called Devaswoms. It is necessary to givesome explanation of the history of the Devaswoms in each ofthese States.

Travancore had been ruled by an unbroken line of Hindu kingsfrom the earliest times and had retained throughout the centuriesits essential character of a Hindu State. The most important templein this State has always been, and still is, the Sri Padmanabhatemple, richly endowed and possessing very extensive landedproperties. These were originally managed by a Yogam (or Synod)of eight hereditary trustees and the ruler, but at the beginning ofthe eighteenth century the Yogam was ousted and theadministration of the temple together with its properties was takenover entirely by the ruler. Thereafter the temple properties becameintermixed with the properties of the State. The State continuedhowever to contribute to the maintenance of the temple and thereligious ceremonies. This state of affairs continued until the timeof the integration of the two States.

Apart from this temple, there were a large number of Devaswomsin the State founded and endowed by the people and managed byooralars, or trustees. From ancient times, the Maharajah hadMelkoima rights (the right of superior authority or overlordship)over the trustees. Before 1811, the State had no direct concern inthe management of these temples; in that year Colonel Munro,the then British Resident for Travancore and Cochin, assumedthe Dewanship and, in exercise of the Melkoima right of theMaharajah, took over the management of the Devaswoms inTravancore. Three hundred and forty-eight major and 1,123 minorDevaswoms with all their properties, were thus taken over formanagement. Even then their income was considerable. In courseof time, the management of yet more was assumed.

A good deal of agitation was excited on the ground that theGovernment of the State were spending less on the maintenanceof the temples and on the religious ceremonies than the amount of revenue which accrued from the Devaswom properties and thatthey were appropriating the balance of the income to themselves.In the end, the legal position was put beyond doubt by the issue ofa proclamation by the Maharajah whereby the Government ofthe State accepted the obligation of maintaining the temples in anefficient condition, and all lawsuits against them were barred. In1946, the Maharajah issued another proclamation which fixed theamount payable every year to the temples at a figure of not lessthan Rs.25 lakhs and reserved the right of making furthercontributions if necessary from the State revenue. Finally, in 1948,immediately before the grant of responsible government, aproclamation was issued by which a yearly sum of Rs.50 lakhswas fixed for the maintenance of all the temples in the State,other than the Sri Padmanabha temple which was to receive Rs.1lakh annually.

Hindu opinion in the State was unanimous in holding not only thatthe continued payment of the existing allotments should beguaranteed, but also that adequate compensation should be givenin respect of the properties taken over by the Government andthe profits derived from them. The annual contribution thus claimedranged from Rs.1 Crore to Rs.2 Crore. Obviously, this plea couldnot be accepted; at the same time it was impossible to decline theobligation of maintaining these temples, the State having takenover all their properties.

I discussed the question with the ministries, as well as with theMaharajah of Travancore. Eventually we came to an agreementby which the annual payment of Rs.51 lakhs made to the templesby the Travancore Government would be continued and out ofthis amount a sum of Rs.6 lakhs would be contributed annuallyfor the maintenance of the Sri Padmanabha temple.

The most difficult issue related to the administration of this grant.After prolonged discussion it was agreed that the administrationof the Sri Padmanabha temple should be conducted under thecontrol and supervision of the Maharajah through an executiveofficer to be appointed by him. It was decided that there shouldbe a committee of three Hindu members nominated by theMaharajah to advise him; and that one of the three should benominated on the advice of the Hindu members of the Council of ABC

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ministers. With regard to the other temples in Travancore, a bodyto be called the Travancore Devaswom Board would be set up.This Board would consist of three Hindu members, one of whomwould be nominated by the Maharajah, one elected by the Hindusamong the Council of Ministers and one by the Hindu membersof the Legislative Assembly of the Union.

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In Cochin, unlike Travancore, the properties of the temples wereadministered separately as a ‘reserved subject’ by the, Maharajah;but after the grant of responsible government, he appointed thePremier of the State to act in his personal capacity as the chiefexecutive authority for Devaswoms. The Poornathrayeesa templeat Trippunithura is the temple of the ruling family and the Maharajahasked for the control of the rituals and ceremonies in this temple,as well as for those in the Pazhayannur temple. I agreed to thisrequest. It was decided to set up a Devaswom Board in Cochinon the same lines as in Travancore. As the Devaswom propertieshad remained separate, there was no necessity to make any specialgrant from State revenues. The landed properties of the temples,I should add, are subject to the land revenue and tenancy laws ofthe State just like any other landed properties.

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These decisions were subsequently incorporated in the covenant.Later on, when the Constitution of India was being finalized, aprovision was included to safeguard the payment to the templesin Travancore by making it charged and non-votable by theLegislature of the Union.

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It must be emphasized here that this provision in the covenantFrelating to Devaswoms brought about a far-reaching social reformin both States. These two States had been the seat of an orthodoxynot found in any other part of India except Malabar. The Temple-entry reform in Travancore recognized to a certain extent theplace of harijans in the Hindu society; but under the covenant, theHarijans would gain a measure of control of the temples throughGtheir representatives in the Legislature and in the ministry andwould also be able to hold posts in the Devaswom Departmentwhich had hitherto been denied to them.

The press had been kept fully informed of the progress of thediscussions and during one of my press conferences, there were H

some criticism regarding the provision for maintenance of thetemples in Travancore. I pointed out to the critics that the propertiesof the temples taken over by the Travancore State Governmenthad increased many times in value and yielded an income greaterthan the amount of contribution provided in the covenant. If thecontribution was considered undesirable or excessive, the Statewould have no option but to return the properties to the temple.The State could not have it both ways, by refusing to return theproperties while at the same time refusing to maintain theDevaswoms.”

Mr. V.P. Menon thus adverted to the issues: that after dedicationin January 1750, Raja Marthanda Varma and his successors ruled as“Dasas” or servants of the deity Sri Padmanabhaswamy; that the rulingfamilies of Travancore and Cochin followed the Marumakkathayamlawor the law of inheritance through the female line; that an agreementwas arrived at, by which annual payment of Rs.51 lakhs made to thetemples by the Travancore Government would be continued, and out ofsaid amount a sum of Rs.6 lakhs would be contributed annually for themaintenance of the Temple; that the administration of the Temple shouldbe conducted under the control and supervision of the Maharaja ofTravancore through an Executive Officer appointed by him; and that asagainst such contribution the value of the properties of the temples takenover by the State Government was far greater. He also referred to thestand of the Ruler of Cochin with respect to the rituals and ceremoniesin the Poornathrayeesa Temple at Trippunithura.

8. On 10.08.1947 a Proclamation was issued by the Maharaja ofTravancore which stated:- “WHEREAS our Ancestors and Ourselves have, as devotees ofSri Padmanabha, been ruling over the State of Travancore duringmany centuries and our sole concern has been the welfare andhappiness of our subjects whom we have been associating withus and propose further to associate with us in the administrationof the State; And Whereas it has become necessary, in the events that havehappened to regulated the succession to the Throne of Travancore,to determine other questions incidental thereto, to regulate and fixthe civil list of ourselves and the members of Our Royal Familyand to make provision for certain other purposes, AB

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And Whereas in respect of succession, adoption, marriage, andother matters, our royal family has from time immemorial ecognizedand observed the Marumakkathayam law as modified by customand usage in Our Royal Family, We are pleased to Command and Enact as follows- B

1. The succession to the Throne of Travancore shall be inaccordance with the Marumakkathayam law as modifiedby the custom and usage prevailing and ecognized in Our RoyalFamily from time immemorial.

2. In case the Sovereign, on the date of His succession, underCthe age of eighteen years, then , until he attains the age ofeighteen years, and where the Sovereign is incapacitated byserious illness, the powers and authorities belonging to theSovereign of Travancore shall be exercised in the name andon behalf of the Sovereign by a Council of Regency consistingDof three of the senior most members of Our Royal Family,who are above eighteen years of age, or of such lesser numberof members as may be available.

3. Provided always that the Council shall not be entitled to changethe rule or order of succession or otherwise to hinder or delayEthe assumption of ruling powers by the rightful heir to theThrone.”

9. It may be mentioned at this stage that Section 6 of theGovernment of India Act, 1935 dealt with “Accession of Indian States”while certain expressions including “Ruler” were defined in Section 311(1)Fthereof. The expression “Ruler” was defined as under:

“311. (1) In this Act, and unless the context otherwise requires, inany other Act the following expressions have the meaning herebyrespectively assigned to them, that is to say :–

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“Ruler” in relation to a State means the Prince, Chief or otherperson recognized by His Majesty as the Ruler of the State.”

After Independence, the India (Provisional Constitution) Order,1947, omitted said Section 311(1). Section 6 which was retained, was tothe following effect:-H

“6 – (1) An Indian State shall be deemed to have acceded to theDominion if the governor-General has signified his acceptance ofan Instrument of Accession executed by the Ruler thereof wherebythe Ruler on behalf of the State:- (a) Declares that he accedes to the Dominion with the intentthat the Governor- General, the Dominion Legislature, theFederal Court and any other Dominion authority establishedfor the purposes of the Dominion shall, by virtue of hisInstrument of Accession, but subject always to the terms thereof,and for the purposes only of the Dominion, exercise in relationto the State such functions as may be vested in them by orderunder this Act; and (b) assumes the obligation of ensuring that due effect is givenwithin the State to the provisions of this Act so far as they areapplicable therein by virtue of the Instrument of Accession.

(2) An Instrument of Accession shall specify the matters whichthe Ruler accepts as matters with respect to which the DominionLegislature may make laws for the State, and the limitations, ifany, to which the power of the Dominion Legislature to makelaws for the State, and the exercise of the executive authority ofthe Dominion in the State, are respectively to be subject.

(3) A Ruler may, by a supplementary Instrument executed by himand accepted by the Governor-General, vary the Instrument ofAccession of his State by extending the functions which by virtueof that Instrument are exercisable by any Dominion authority inrelation to his State.

(4) References in this Act to the Ruler of a State include referencesto any persons for the time being exercising the powers of theRuler of the State, whether by reason of the Ruler’s minority orfor any other reason.

(5) In this Act a State which has acceded to the Dominion isreferred to as an Acceding State and the Instrument by virtue ofwhich a State has so acceded, construed together with anysupplementary Instrument executed under this section, is referredto as the Instrument of Accession of that State.

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A(6) As soon as may be after any Instrument of Accession orsupplementary Instrument has been accepted by the Governor-Genera] under this section, copies of the Instrument and of theGovernor-General’s acceptance thereof shall be laid before theDominion Legislature and all courts shall take judicial notice ofevery such Instrument and acceptance.”B

10. The Travancore Interim Constitution Act, 1123 came into force on 24.03.1948. Sections 1, 2 and 4 of said Act were:- “1. (1) This Act may be called the Travancore Interim ConstitutionAct, 1123.

C(2) It shall come into force at once.

(3) It shall remain in force until the new Constitution Act framedby the Representative Body comes into force.

2. In this Act ‘Our Government’ means the Maharaja ofDTravancore exercising the executive authority of the TravancoreState in accordance with the provisions of this Act.

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4. The following subjects, namely,

(a) Our Palace and Our Royal Family and all matters connectedEtherewith, including Sri Pandaravaka, (b) Devaswoms, Hindu Religious Endowments and mattersconnected therewith, shall be under our exclusive control andsupervision and shall not, in any respect, be within the scope orpurview of the Council of Ministers or the LegislativeFAssembly.”

11. The aspects referred to by Mr. V.P. Menon find clearlyreflected in the Covenant entered into by the Maharajas of Travancoreand Cochin with the Government of India. Mr. V.P. Menon had signedthe Covenant on behalf of the Government of India. The Covenant signedGby the Maharajas of Travancore and Cochin on 27.05.1949 and29.05.1949 respectively (hereinafter referred to as ‘the Covenant’) asRulers of the respective Covenanting States had twenty-two Articlesand the relevant portions of the Covenant were:- H

SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

“THE COVENANT

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ENTERED INTO BY THE RULERS OF TRAVANCORE ANDCOCHIN FOR THE FORMATION OF THE UNITED STATE OFTRAVANCORE AND COCHIN

WE, the Rulers of Travancore and Cochin, do hereby, with theconcurrence and guarantee of the Government of India, enterinto the following Covenant.

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Article I

As from the first day of July, 1949, the States of Travancore andCochin shall be united in, and shall form, one State, with a commonexecutive, legislature and judiciary, by the name of the UnitedState of Travancore and Cochin.

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Article II

In the succeeding Articles of this Covenant, the first day of July,1949, is referred to as the appointed day, the States of TravancoreDand Cochin are referred to as the Covenanting States, and theUnited State of Travancore and Cochin is referred to as the UnitedState.

Article III

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As from the appointed day,

(a) all right, authority and jurisdiction belonging to the Ruler ofeither of the Covenanting States which appertain or areincidental to the Government of the State shall vest in theUnited State; F

(b) all duties and obligations of the Ruler of either of theCovenanting States pertaining or incidental to the Governmentof that State shall devolve on the United State, and shall bedischarged by it; and

(c) all the assets and liabilities of either Covenanting State shallGbe the assets and liabilities of the United State.

Article IV

(1) There shall be a Raj Pramukh for the United State.

(2) The present Ruler of Travancore shall be the first RajHPramukh and shall be entitled to hold office during his life-time.

A(3) In the event of a permanent vacancy arising in the office ofthe Raj Pramukh by death, resignation or any other reason,such vacancy shall be filled in such manner as the GovernerGeneral of India may prescribe.

(4) Notwithstanding anything contained in this Article, if the RajBPramukh is by reason of absence or illness or for any otherreason unable to perform the duties of his office, those dutiesshall until he has resumed them be performed in such manneras the Governor General of India may prescribe.

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CArticle VI

Subject to the provisions of this Covenant, the executive authorityof the United State shall be exercised by the Raj Pramukh eitherdirectly or through officers subordinate to him; but nothing in thisArticle shall prevent any competent legislature of the United StateDfrom conferring functions upon subordinate authorities or bedeemed to transfer to the Raj Pramukh any functions conferredby any existing law on any court, judge or officer or any local orother authority in either of the Covenanting states.

Article VIIE

(1) There shall be a Council of Ministers to aid and advise theRaj Pramukh in the exercise of his functions save as providedin Articles XII and XIII.

(2) The Ministers shall be chosen by, and shall hold office duringthe pleasure of, the Raj Pramukh.

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Article VIII

(a) The obligation of the covenanting State of Travancore tocontribute from its general revenues a sum of Rs.50 lakhs everyyear to the Devaswom fund as provided for in the DevaswomG(Amendment) Proclamation, 1123 M.E., and a sum of Rs.1 lakhevery year to Sri Pandaravaga referred to in proviso (a) to sub-section (1) of Section 23 of the Travancore Interim ConstitutionAct 1123 M.E., shall, from the appointed day, be an obligation ofthe United State and the said amounts shall be payable therefromand the Raj Pramukh shall cause the said amounts to be paid H

every year to the Travancore Devaswom Board and the ExecutiveOfficer (referred to in sub-clause (b) of this article) respectively.

(b) The administration of Sri Padmanabhaswamy Temple, the SriPandaravaga properties and all other properties and funds of thesaid temple now vested in trust in the Ruler of the covenantingState of Travancore and the sum of Rs.1 lakh transferred fromyear to year under the provisions of clause (a) of this article andthe sum of five lakhs of Rupees contributed from year to yeartowards the expenditure in the Sree Padamanabhaswamy Templeunder sub-clause (c) of this Article, shall, with effect from thefirst day of August 1949, be conducted, subject to the control andsupervision of the Ruler of Travancore, by an Executive Officerappointed by him. There shall be a Committee known by the nameof the Sree Padmanbhaswamy Temple Committee composed ofthree Hindu Members, to be nominated by the Ruler of Travancoreto advise him in the discharge of his functions. Suits by or againstthe Sree Padamanbhaswamy Temple or in respect of its propertiesshall be instituted in the name of the said Executive Officer.

(c) The administration of the incorporation and unincorporatedDevaswoms and of Hindu Religious Institutions and Endowmentsand all their properties and funds as well as the fund constitutedunder the Devaswom Proclamation 1097 M.E. and the surplusfund constituted under the Devaswom (Amendment)Proclamation, 1122 M.E. which are under the management of theRuler of the covenanting State of Travancore and the sum ofRs.50 lakhs transferred from year to year under clause (a) shallwith effect from the first day of August 1949 vest in a Boardknown by the name of the Travancore Devaswom Board. Anannual contribution of Five lakhs of Rupees shall be made by theTravancore Devaswom Board from the aforesaid sum of Rs.50lakhs towards the expenditure in the Sree PadmanabhaswamyTemple.

(d) The administration of the incorporated and unincorporatedDevaswoms and Hindu Religious Institutions which are under themanagement of the Ruler of the covenanting State of Cochin underSection 50 G of the Government of Cochin Act, XX of 1113 M.E.,or under the provisions of the Cochin Hindu Religious InstitutionsAct, I of 1081 M.E., and all their properties and funds and of the AB

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Estates under the management of the Devaswom Department ofthe covenanting State of Cochin, shall with effect from the firstday of August 1949 vest in a Board known by the name of theCochin Devaswom Board.

Provided that the regulation and control of all rituals and ceremoniesin the temple of Sree Poornathrayeesa at Trippunithura and in thePazayannore Bhagavathy temple at Pazayannore shall continueto be exercised as hither to by the Ruler of Cochin.

(e) The Board referred to in sub-clause I of this article shall consistof three Hindu Members, one of whom shall be nominated by theRuler of the convenanting State of Travancore, one by the Hinduamong the Council of Ministers, and one elected by the Hindumembers of the Legislative Assembly of the United State.

(f) The Board referred to in sub-clause (d) of this article shallconsist of three Hindu Members, one of whom shall be nominatedby the Ruler of the covenanting State of Cochin, one by the Hindusamong the Council of Ministers, and one elected by the HinduMembers of the Legislative Assembly of the United State.

(g) Each of the aforesaid Boards shall be a separate body corporatehaving perpetual succession and a common seal with powers tohold and acquire properties and shall by its name sue and be sued.

(h) Subject to the provisions of this article, the constitution, powersand duties of the Boards aforesaid shall be such as may bedetermined hereafter by law enacted by competent authority.

Article IX

The Raj Pramukh shall, within a fortnight of the appointed day,execute on behalf of the United State an Instrument of Accessionin accordance with the provisions of Section 6 of the Governmentof India Act, 1935, and in place of the Instruments of Accessionof the Covenanting States; and he shall by such Instrument acceptas matters with respect to which the Dominion Legislature maymake laws for the United State all the matters mentioned in List Iand List III of the Seventh Schedule to the said Act, except theentries in List I relating to any tax or duty; Provided that nothing in this Article shall be deemed to preventthe Raj Pramukh from accepting by a Supplementary Instrument any or all of the entries in the said List I relating to any tax or dutyas matters with respect to which the Dominion Legislature maymake laws for the United State; and in doing so the Raj Pramukhmay specify the limitations, if any, subject to which the power ofthe Dominion Legislature to make laws for the United State inrespect of such matters and the exercise of the executive authorityof the Dominion in the United State are respectively to be subject.

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Article X

(1) There shall be a Legislature for the United State consistingof the Raj Pramukh and the Legislative Assembly.

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(2) All persons, who, immediately before the appointed day, aremembers of the Representative Body of Travancore or theLegislative Assembly of Cochin, shall on that day becomemembers of the Legislative Assembly of the United State.

(3) If immediately before the appointed day any vacancy existsin the membership of the Representative Body of TravancoreDor the Legislative Assembly of Cochin, it shall be deemed tobe a vacancy in the membership of the Legislative Assemblyof the United State; and any such vacancy and any vacancythat may occur after the appointed day shall be filled in thesame manner as it would have been filled if this CovenantEhad not been entered into.

(4) The Legislature of the United State shall subject to theprovisions of this Covenant have full power to make laws forthe United State, including provisions as to the Constitutionof the United State, within the framework of this Covenantand the Constitution of India.

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Article XI

Until a Constitution framed or adopted by the Legislature comesinto operation, the Raj Pramukh shall have power to make andpromulgate Ordinances for the peace and good government ofthe United State or any part thereof, and any Ordinance so madeshall for the space of not more than six months from itspromulgation have the like force of law as an Act of theLegislature, but any such Ordinance may be controlled orsuperseded by any such Act.

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AArticle XII

If at any time before a Constitution framed or adopted by theLegislature comes into operation, the Raj Pramukh is satisfiedthat a situation has arisen in which the Government of the UnitedState cannot be carried on in accordance with the provisions ofBthis Covenant, he may, with the prior concurrence of theGovernment of India, by Proclamation- (a) declare that his functions shall, to such extent as may bespecified in the Proclamation, be exercised by him in hisdiscretion; C

(b) assume to himself all or any of the powers vested in orexercisable by any authority or body within the UnitedState; and any such Proclamation may contain such incidental andconsequential provisions as may appear to him necessary orDdesirable for giving effect to the objects of the Proclamation,including provisions for suspending, in whole or part, the operationof any provisions of this Covenant or of any other constitutionalprovisions relating to any authority or body in the United State:

Provided that nothing in this Article shall authorize the RajEPramukh to assume to himself any of the powers vested in orexercisable by a High Court, or to suspend, either in whole or inpart, the operation of any law relating to a High Court.

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Article XIVF

(1) The Ruler of each Covenanting State shall be entitled to receiveannually from the revenue of the United State for his privy pursethe amounts specified against that Covenanting State in theSchedule:

Provided that the sums specified in the Schedule in respect of theRuler of Travancore shall be payable only to the present Rulerand not to his successors for whom provision will be madesubsequently by the Government of India.

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(2) The said amount is intended to cover all the expenses of theHRuler including expenses on residence and ceremonies and shallneither be increased nor reduced for any reason whatsoever.

(3) The United State shall pay the said amount to the Ruler in fourequal instalments at the beginning of each quarter in advance.

(4) The said amount shall be free of all taxes whether imposed bythe Government of the United State or by the Government ofIndia.

Article XV

(1) The Ruler of each Covenanting State shall be entitled to thefull ownership, use and enjoyment of all private properties (asdistinct from State properties) belonging to him immediately beforethe appointed day.

(2) He shall furnish to the Government of India in the Ministry ofStates before the 1[st] day of September 1949 an inventory of allimmovable property, securities and cash balance held by him assuch private property.

(3) If any dispute arises as to whether any item of property is theprivate property of the Ruler or State property, it shall be referredto such person as the Government of India may nominate inconsultation with the Ruler of Travancore or Cochin as the casemay be, and the decision of that person shall be final and bindingon all parties concerned.

Article XVI

The Ruler of each Covenanting State, as also the member of hisfamily, shall be entitled to all the personal privileges, dignities andtitles enjoyed by them, whether within or outside the territories ofthe State, immediately before the 15[th] day of August, 1947.

Article XVII

(1) The succession, according to law and custom to the gaddi ofeach Covenanting State and to the personal rights, privileges,dignities and titles of the Ruler thereof is hereby guaranteed.

(2) Every question of disputed succession in regard to aCovenanting State shall be decided by the Raj Pramukh afterreferring it to the High Court of the United State and in accordancewith the opinion given by the High Court.

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1016SUPREME COURT REPORTS

AArticle XXI

Notwithstanding anything contained in the preceding provisionsof this Covenant, the Rulers of Travancore and Cochin shallcontinue to have and exercise their present powers of suspension,remission or commutation of death sentences in respect of anyBperson who may have been or is hereafter sentenced to death forcapital offence/committed within the territories of Travancore orCochin as the case may be.”

At the end, Schedule mentioned the amounts of Privy Purseswhereafter the signatures were appended.

“S C H E D U L E

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Covenanting States and Privy Purse amounts.

Rs.Travancore18 lakhs.Cochin2,35,000.

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In confirmation of the above Covenant we append oursignatures, on behalf of ourselves, our heirs and successors.

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Trivandrum, 27.5.49 MAHARAJA OF TRAVANCORE

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Trippunithara, 29.5.49 MAHARAJA OF COCHIN

The Government of India hereby concur in the aboveCovenant and guarantee all its provisions. In confirmation whereofMr. Vapal Pangunni Menon, Advisor to the Government of Indiain the Ministry of States, appends his signature on behalf and withthe authority of the Government of India.

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ADVISER TO THE GOVERNMENT OF INDIA

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MINISTRY OF STATES.”

12. The Constitution of India made certain provisions with regardto privy purse sums payable to the Rulers in terms of any covenant oragreement entered into by the Ruler of the State before thecommencement of the Constitution, as also with regard to the rights andHprivileges of Rulers of Indian States. In terms of Article 238 (10), which Article has since then been repealed by the Constitution (SeventhAmendment) Act, 1956, it was provided that a sum of Rupees 51 lakhs(fifty one lakhs), as provided in the Covenant, shall be paid to theDevaswom Board. Articles 291, 362, 363 and 366(22) as they stoodbefore the Constitution (Twenty Sixth Amendment) Act, 1971 were:- “Art.291:Privy Purse sums of Rulers- Where under anycovenant or agreement entered into by the ruler of any IndianState before the commencement of this Constitution, the paymentof any sums free of tax has been guaranteed or assured by theGovernment of the Dominion of India to any ruler as such asprivy purse:

(a) Any sums shall be charged on and paid out of theConsolidated Fund of India; and (b) The sums so paid to any Ruler shall be exempt from alltaxes on income.

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Art.362: Rights and Privileges of rulers of Indian States.-In the exercise of the power of Parliament or of the Legislatureof a State to make laws or in the exercise of the executive powerof the Union or of a State, due regard shall be had to the guaranteeor assurance given under any such covenant or agreement as isreferred to in Article 291 with respect to the personal rights,privileges and dignities of the Ruler of an Indian State.

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Art. 363: Bar to interference by courts in disputes arisingout of certain treaties, agreements, etc.- (1) Notwithstandinganything in this Constitution but subject to the provisions of Article143, neither the Supreme Court nor any other Court shall havejurisdiction in any dispute arising out of any provision of a treaty,agreement, covenant, engagement, sanad or other similarinstrument which was entered into or executed before thecommencement of this Constitution by any ruler of an Indian Stateand to which the Government of the Dominion of India or any ofits predecessor Governments was a party and which has or hasbeen continued in operation after such commencement, or in anydispute in respect of any right accruing under or any liability or A

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Aobligation arising out of any of the provisions of this Constitutionrelating to any such treaty, agreement, covenant, engagement,sanad or other similar instrument.

(2) In this Article-

(a) “Indian State” means any territory recognised beforethe commencement of this Constitution by His Majesty or theGovernment of the Dominion of India as being such a State;and B

(b) “Ruler” includes the Prince, Chief or other personrecognised before such commencement by His Majesty or theCGovernment of the Dominion of India as the Ruler of any IndianState.

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Art.366: Definitions- In this Constitution, unless the contextDotherwise requires, the following expressions have the meaningshereby respectively assigned to them, that is to say –

1) to 21) ... ... ...

22) Ruler in relation to an Indian State means the Prince, Chief orother person by whom any such covenant or agreement as isEreferred to in Clause (1) of Article 291 was entered into and whofor the time being is recognized by the President of India as theruler of the State and includes any person as the successor ofsuch Ruler.

23) to 30) …..”

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13. Soon after the coming into force of the Constitution, theTravancore-Cochin Hindu Religious Institutions Act, 1950 (hereinafterreferred to as “the TC Act”) was enacted to make provision for theadministration, supervision and control of incorporated and unincorporatedDevaswoms and of other Hindu Religious Endowments and Funds. PartGI of the TC Act comprising of Sections 2 to 60 extends to Travancore,while Part II comprising of Sections 61 to 130 extends to Cochin andPart III extends to the whole of the State except Malabar area.

13.1 Section 2 defines expressions ‘Hindu’ and ‘Hindu ReligiousEndowment’ as :- H

“(aa) “Hindu” means a person who is a Hindu by birth or byconversion and professes the Hindu religion:

Provided that a hindu member to be nominated or electedto the Board under Section 4 shall be a person who believes inGod and temple worship and who shall make an oath before theSecretary of the Board to that effect in the form prescribed bythe Government for the purpose before he enters upon his office; (b) “Hindu Religious Endowment” means-

(i) every Hindu temple or shrine or other religiousendowment dedicated to, or used as of right by, the Hinducommunity \or any section thereof; and

(ii) every other Hindu endowment or foundation, bywhatever local designation known, and property, endowments andofferings connected therewith, whether applied wholly to religiouspurposes or partly to charitable or other purposes, and everyexpress or constructive trust by which property or money is vestedin the hands of any person or persons by virtue of hereditarysuccession or otherwise for such purposes:

but shall not include any Hindu religious institution belongingto and under the sole management of a single family:

Provided that, where the Management of religious institutionhas passed into the hands of several branches by division amongthe members of the original family, the institution may neverthelessbe considered as being in the management of a single family forthe purpose of this Part.

Explanation - The expression “hereditary succession” shallinclude succession to a “Guru” by a disciple by nomination orotherwise;”

13.2 Chapter II of Part I deals with “The Travancore Devaswom”.Sections 3, 4 and 15 appearing in said Chapter II are:- “3. Vesting of administration in Board.- The administrationof incorporated and unincorporated Devaswoms and of HinduReligious Endowments and all their properties and funds as wellas the fund constituted under the Devaswom Proclamation, 1097M.E. and the Surplus Fund constituted under the Devaswom AB

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A(Amendment) Proclamation, 1122 M.E. which were under themanagement of the Ruler of Travancore prior to the first day ofJuly, 1949, except the Sree Padmanabhaswamy Temple, SreePandaravaka properties and all other properties and funds of thesaid temple, and the management of all institutions which wereunder the Devaswom Department shall vest in the TravancoreBDevaswom Board.

4. Constitution of the Travancore Devaswom Board.- (1)The Board referred to in Section 3 shall consist of three Hindumembers, two of whom shall be nominated by the Hindus amongthe Council of Ministers and one elected by the Hindus amongCthe members of the Legislative Assembly of the State of Kerala..

(2) The Board shall be a body corporate having perpetualsuccession and a common seal with power to hold and acquireproperties for and on behalf of the incorporated and unincorporatedDevaswoms and Hindu Religious institutions and EndowmentsDunder the management of the Board.

(3) The Board shall by its name sue and be sued and the Secretaryto the Board shall represent the Board In such suits.

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E15. Vesting of jurisdiction in the Board.- (1) Subject to theprovisions of Chapter III of this Part, all rights, authority andjurisdiction belonging to or exercised by the Ruler of Travancoreprior to the first day of July, 1949, in respect of Devaswoms andHindu Religious Endowments shall vest in and be exercised byFthe Board in accordance with the provisions of this Act.

(2) The Board shall exercise all powers of direction, control andsupervision over the incorporated and unincorporated Devaswomsand Hindu Religious Endowments under their jurisdiction.”

13.3 Chapter III of Part I comprising of Sections 18 to 23 dealsGspecifically with “Sree Padmanabhaswamy Temple” and said Sectionsare to the following effect:- “18. Administration by Executive Officer. - (1) Out of theamount of forty-six lakhs and fifty thousand rupees provided forpayment to the Devaswom Fund in Article 290-A of theHConstitution of India, a contribution of six lakhs of rupees shall be SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

made annually towards the expenditure in the SreePadmanabhaswamy Temple.

(2) The administration of the Sree Padmanabhaswamy temple,the Sree Pandaravaga properties and all other properties and fundsof the said temple vested in trust in the Ruler of Travancore andthe sum of six lakhs of rupees mentioned in sub-section (1) shallbe conducted, subject to the control and supervision of the Rulerof Travancore, by an executive officer appointed by him.

19. Suits by or against Executive Officer. - Suits by or againstthe Sree Padmanabhaswamy Temple or in respect of its propertiesshall be instituted in the name of the said Executive officer.

20. Constitution of the Sree Padmanabhaswamy TempleCommittee. - There shall be a Committee known by the nameof the Sree Padmanabhaswamy Temple committee to advise theRuler of Travancore in the discharge of his functions. TheCommittee shall be composed of three Hindu members who shallbe nominated by the Ruler of Travancore and shall hold office forsuch term as he may determine.

21. Chairman of the Committee. - (1) The Ruler of Travancoreshall nominate one of the members to be the Chairman of theCommittee.

(2) The Committee shall meet at least one in quarter in Trivandrum.

(3) The members of the Committee shall be paid such travellingallowance and siting for as the Ruler of Travancore may fromtime to time determine.

22. Secretary of the Committee. - (1) The Executive Officerof the Temple shall be the Secretary to the Committee.

(2) The Secretary shall convene the meetings of the Committeeon such dates as may fix in consultation with the Chairman. Heshall, after consulting the Chairman to the Ruler of Travancore,prepare the age and give the members notice of the day of timewhen the meeting is to be held and of business to be transactedthereat.

(3) A copy of the minutes of the proceedings every meeting shallbe communicated by the Chairman to the Ruler of Travancore.

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A23. Existing arrangements regarding properties andcollection to continue. - Until other arrangements are made,the existing arrangements regarding the management of the SreePandaravarga Properties and the collection of revenues therefromshall continue as heretofore.”

B13.4 Chapter IV of Part I deals with Incorporated andUnincorporated Devaswoms and Section 33 appearing in said Chapterreads:- “33. Budget and Administration Report.-(1) The Board shall ineach year prepare a budget for the next financial year showingCthe probable receipts and disbursements of the incorporated andunincorporated Devaswoms and Hindu Religious institutions underthe management of the Board during that financial year. TheBoard shall also within two months of the commencement of eachfinancial year submit to the Government[9] such number of copiesof the budget so prepared as the Government may direct.D

(2) The Board shall in each financial year prepare an annualadministration report of the working of the Board during that yearand shall within three months of the commencement of the nextfinancial year submit to the Government[9] such number of copiesof the said report as the Government[10] may direct.”E13.5 Sections 36 and 37 dealing with power of DevaswomCommissioner to call for periodical accounts and assumption ofmanagement of Hindu Religious Endowments by Board appear in ChapterV of Part I and are as follows: - F“36. Devaswom Commissioner’s powers to call forperiodical accounts, etc.- It shall be competent to theDevaswom Commissioner by a notice to call upon the trustees ormanagers of any Endowment falling under the definition in Section2, clause (b) to submit periodical accounts of income andexpenditure or lists of properties, jewels, vessels, furniture or otherGthings belonging to the Endowments under their charge or depute 9 By Amendment to the TC Act effected in 1974, the expression “the Government”stood substituted for the expression “The Ruler of Travancore”

10 By same Amendment, the expression “the Government” was substituted for theHexpression “the Ruler”

any officer of the Devaswom Department to examine and verifythe same.

It shall also be competent to the officer so deputed to call uponthe trustees and managers by a notice to furnish him with all theaccounts or other records or information he may require for thepurpose of examination and verification and also to assist him inthe examination of accounts and movable property.

The notice shall be served in the manner prescribed by the Codeof Civil Procedure for the time being in force for the service ofsummons.

Where the officer deputed under this Section finds that anymovables are likely to be removed or misappropriated, he shallmake an immediate report to the Devaswom Commissioner takingsuch steps for their temporary safe custody as may be necessary.On receipt of such report, the Devaswom Commissioner may,after hearing the parties concerned, pass such orders as he maythink proper.

Any trustee or manager who wilfully or contumaciously disobeysany order passed by the Devaswom Commissioner or any noticeissued under this Section shall be deemed to have committed anoffence under Section 181 of the Travancore Penal Code and heshall be liable to be prosecuted therefor.

“Trustee” shall mean, for the purposes of this Chapter the personor persons in whom the administration of the affairs of a religiousendowment is vested in trust of holding any property in trusttherefor, by whatever designation such person or persons may beknown.

37. Assumption of management of Hindu ReligiousEndowments by Board.- (1) The Board may assume themanagement of Hindu Religious Endowments in the followingCases:- (a) On the application and the request by a majorityconsisting of not less than two-thirds of the trustees, or of thedonors in cases where the donors have reserved to themselvesthe power of appointing and dismissing trustees.

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(b) On the refusal of the trustees to continue in thetrusteeship or on their own admission of incapacity to continue inthe trust management.

(c) In cases where the Ruler of Travancore had the right totake part in the management by appointment of certain officersor servants according to existing usages, if the trustees have failedto carry on their duties properly and in the best interests of theinstitution.

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(d) In cases where the Ruler of Travancore had the right tosucceed to the right of management, in part, by reason of escheatCof trustees, if the remaining trustees have failed to carry on theirduties properly and in the best interests of the institution.

(e) In cases of proved mismanagement although theinstitutions do not fall under clause (c) or clause (d) of this sub-section.

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Explanation. - The word “donors’ includes the legalrepresentatives of the donors.

(2) Notwithstanding anything contained in sub-section (1) the Boardmay, instead of assuming management, exercise suchsuperintendence in the management over any institution to whichthis Part applies as to best fulfil the objects of the trust, if thetrustees have failed to carry on their duties properly and in thebest interests of the institution.

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(3) The Board may make rules for the purpose of carrying intoeffect the provisions contained in sub-section (2)

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(4) Any person deeming himself aggrieved by an order ofassumption passed on any of the grounds mentioned in clause (c),(d) and (e) of sub-section (1) of this section may, within a periodof six months from the date of the publication of the order ofassumption in the Kerala Government Gazette, institute in theGDistrict Court, within whose jurisdiction the subject matter is situate, a suit against the Board to set aside such order:

Provided that subject to the result of the suit, if any, the order ofassumption shall be final.”

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13.6 Section 61 appearing in Part II defines expressions “Founder”,“Hereditary Trustee” and “Hindu” as :- “(3) “founder” shall include his legal representatives;

(4) “hereditary trustee” shall mean the trustee of aninstitution, succession to whose office devolves by hereditary rightor is regulated by usage or is specifically provided for by thefounders so long as such mode of succession is in force; (4A) “ Hindu” means a person who is a Hindu by birth orby conversion and professes the Hindu religion:

Provided that a Hindu member to be nominated or electedto the Board under Section 63 shall be a person who believes inGod and temple worship and who shall make an oath before theSecretary of the Board to that effect in the form prescribed bythe Government for the purpose before he enters upon his office.”

Section 62 states :-

“62. Vesting of administration in the Board.- (1) Theadministration of incorporated and unincorporated Devaswomsand Hindu Religious Institutions which were under themanagement of the Ruler of Cochin immediately prior to thefirst day of July, 1949 either under Section 50G of theGovernment of Cochin Act, XX of 1113, or under the provisionsof the Cochin Hindu Religious Institutions Act, I of 1081, andall their properties and funds and of the estates and all institutionsunder the management of the Devaswom Department ofCochin, shall vest in the Cochin Devaswom Board.

(2) Notwithstanding the provisions contained in sub-section(1)the regulation and control of all rituals and ceremonies in thetemple of Sree Poornathrayeesa at Trippunittura and in thePazhayannur Bhagavathy temple at Pazhayannur shall continueto be exercised as hitherto by the Ruler of Cochin.”

Section 128 states:-

“128.Board to exercise powers under Proclamation of1094.- The powers vested in the Government and the Diwanby Proclamation dated the 13th day of Edavam 1094 asamended by Proclamation, VII of 1120, shall be vested in and A

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Aexercised by the Board and the said Proclamation shall haveeffect as if for the words “our Government” and “Our Diwan”occurring therein the words “the Cochin Devaswom Board”were substituted.”

14. The Hindu Succession Act, 1956 enacted by the ParliamentBto amend and codify the law relating to Intestate Succession amongHindus came into force on 17.06.1956. Section 5 of said Act reads:- “5.Act not to apply to certain properties.–This Act shall notapply to—

(i) any property succession to which is regulated by the IndianCSuccession Act, 1925, by reason of the provisions contained insection 21 of the Special Marriage Act, 1954;

(ii) any estate which descends to a single heir by the terms of anycovenant or agreement entered into by the Ruler of any IndianState with the Government of India or by the terms of anyDenactment passed before the commencement of this Act;

(iii) the Valiamma Thampuran Kovilagam Estate and the PalaceFund administered by the Palace Administration Board by reasonof the powers conferred by Proclamation (IX of 1124) dated 29thJune, 1949, promulgated by the Maharaja of Cochin.”E15. The Constitution (Seventh Amendment) Act, 1956 deleted PartVII comprising of Article 238, but inserted Article 290A into theConstitution. Said Article 290A is to the following effect:- “290A. Annual payment to certain Devaswom Funds.- A sumof forty-six lakhs and fifty thousand rupees shall be charged on,Fand paid out of, the Consolidated Fund of the State of Keralaevery year to the Travancore Devaswom Fund; and a sum ofthirteen lakhs and fifty thousand rupees shall be charged on, andpaid out of the Consolidated Fund of the State of Tamil Nadu,every year to the Devaswom Fund established in that Sate for theGmaintenance of Hindu temples and shrined in the territoriestransferred to that State on the 1[st] day of November, 1956, fromthe State of Travancore-Cochin.”

The sum assured in the Covenant and as reflected in Article 238was Rupees 51 lakhs. However, after the reorganization of the States,Hcontrol with respect to certain Devaswoms falling in its territories vested with State of Madras (now State of Tamil Nadu) and as such there wasmodification in the amount allocable to Devaswoms in the State of Keralaas successor to the erstwhile State of Travancore and Cochin.

16. Orders[11] passed by the President of India declaring that theRulers of Indian States ceased to be recognized as Rulers of respectiveIndian States, gave rise to challenge on behalf of the Rulers and wasdealt with by this Court in Madhav Rao Jivaji Rao Scindia v. Unionof India[12]. By a majority of 9:2, the Constitution Bench of this Courtdeclared the orders passed by the President of India to be illegal. At thisstage, the following reference to the administration of the Temple andthe right of the Ruler of Travancore in terms of Article VIII(b) of theCovenant in the Judgment of K.S. Hegde, J. may be noted:- “186. In respect of the administration of PadamanabhaswamyTemple the right of the Ruler of Travancore was preserved underArticle VIII(b) of the covenant. Similarly the existing rights ofthe Rulers of Travancore and Cochin as regards the managementof certain temples and funds were preserved.They were alsogiven a right to nominate some members to some of the statutoryBoards. From the foregoing it is seen that under the variouscovenants, several rights in addition to the right of receiving privypurses had been created in favour of the Rulers of some of thecovenanting States.”

17. Soon thereafter the Parliament enacted the Constitution(Twenty Sixth Amendment) Act, 1971 which came into force on28.12.1971. It omitted Articles 291 and 362; inserted new Article 363A;and amended the definition of Ruler appearing in clause 22 of Article366. The Statement of Objects and Reasons for said Amendment wasas under:- “The concept of rulership, with privy purses and special privilegesunrelated to any current functions and social purposes, wasincompatible with an egalitarian social order. Government have,therefore, decided to terminate the privy purses and privileges ofthe Rulers of former Indian States. It is necessary for this purpose,apart from amending the relevant provisions of the Constitution, 11 Dated 06.09.1970 and published in the Gazette of India of 19.09.1970.

12 (1971) 1 SCC 85 decided on 15.12.1970

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to insert a new Article therein so as to terminate expressly therecognition already granted to such Rulers and to abolish privypurses and extinguish all rights, liabilities and obligations in respectof privy purses. Hence this Bill.”

Article 363A and Article 366 (22), after the Amendment read as Bunder:- “363A. Recognition granted to Rulers of Indian Statesto cease and privy purses to be abolished.- Notwithstandinganything in this Constitution or in any law for the time being inforce- C

(a) The Prince, Chief or other person who, at any timebefore the commencement of the Constitution (Twenty-sixthAmendment) Act, 1971, was recognized by the President as theRuler of an Indian State or any person who, at any time beforesuch commencement, was recognized by the President as thesuccessor of such Ruler shall, on and from such commencement,cease to be recognized as such Ruler or the successor of suchRuler; D

(b) On and from the commencement of the Constitution(Twenty-sixth Amendment) Act, 1971, privy purse is abolishedEand all rights, liabilities and obligations in respect of privy purseare extinguished and accordingly the Ruler or, as the case maybe, the successor of such Ruler, referred to in clause (a) or anyother person shall not be paid any sum as privy purse.

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FArticle 366 (22)

(22) “Ruler” means the Prince, Chief or other person who, at anytime before the commencement of the Constitution (Twenty-sixthAmendment) Act, 1971, was recognised by the President as theRuler of an Indian State or any person who, at any time beforeGsuch commencement, was recognised by the President as thesuccessor of such Ruler;”

18. State of Kerala enacted Sree Pandaravaka Lands (Vestingand Enfranchisement) Act, 1971. Section 2(k) defines “Temple” to meanSree Padmanabhaswamy Temple and Section 3 of the Act is to theHfollowing effect:- “(1) Notwithstanding anything contained in any law or contract orin any judgment, decree or order of court, with effect on and fromthe appointed day,- (a) all rights, title and interest of the Temple in all SreePandaravaka lands held by landholders shall stand estinguished; (b) All rights, title and interest of the Temple in all SreePandaravaka Thanathu lands, except those referred to in sub-section (2), shall vest in the Government;

(c) every building which immediately before the appointedday belonged to the Temple and was then being used as an officein connection with the administration of the Melkanganam branchof the Sree Pandaravaka Department and for no other purpose,shall vest absolutely in the Government free of all encumbrances.

Explanation.- For the purposes of this sub-section, “building”includes the site on which it stands and any land appurtenantthereto.

(2) Nothing contained in sub-section (1) shall apply to the landsspecified in the Schedule.

(3) The Government may, on being satisfied that any SreePandaravaka Thanathu land is absolutely indispensable for themaintenance, upkeep and use of the Sree Padmanabha SwamyTemple, or any temple attached thereto, direct, by notification inthe Gazette, that the rights, title and interest in respect of suchland shall cease to vest in the Government and thereupon suchrights, title and interest shall re-vest in the SreePadmanabhaswamy Temple.

(4) If any question arises as to whether any building falls or doesnot fall within the scope of sub-section (1), it shall be referred tothe Government whose decision thereon shall be final and shallnot be liable to be questioned in any court of law.”

19. The Parliament enacted the Rulers of Indian States (Abolitionof Privileges) Act, 1972 (‘1972 Act’, for short) “to amend certainenactments consequent on derecognition of Rulers of Indian States andabolition of privy purses, so as to abolish the privileges of Rulers and tomake certain transitional provisions to enable the said Rulers to adjustprogressively to the changed circumstances”. The Statement of Objectsand Reasons stated:- A

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“With the derecognition of Rulers and the abolition of privy purse,the historical considerations on the basis of which special privilegeswere given to Rulers of Indian States have ceased to be valid andthe indefinite continuance of those privileges would be indefensible.However, in order to enable the former Rulers to adjustprogressively to the changed circumstances on account of theabolition of privy purse, it appears necessary to make specialprovisions. Some of the privileges of the former Rulers have beenprovided for by certain enactments. This Bill seeks to amend thoseenactments in the manner indicated below.

2. The immunity of a Ruler of an Indian State from criminalprosecution or civil suit under the Code of Criminal Procedure,1898 and the Code of Civil Procedure, 1908 is being limited toacts and omission of such Ruler before the 26[th] January, 1950(clauses 2 and 3 of the Bill), and by way of consequential change,Section 168 of the Representation of the People Act, 1951 is beingomitted (clause 4 of the Bill).

3. The exemptions under the Wealth Tax Act, 1957 in respect ofthe one residence and heirloom jewellery of each former Ruler isbeing limited for his lifetime. Further, the exemption in respect ofheirloom jewellery recognized by the Central Government is beingmade subject to conditions similar to those applicable at present inthe case of heirloom jewellery recognized by the Central Boardof Direct Taxes (clause 5 of the Bill).

4. The existing exemption under the Gift-tax Act, 1958 in respectof the gifts made out of privy purse is being withdrawn (clause 6of the Bill).

5. It is also proposed to amend the Income-tax Act, 1967 to providefor exemption of any ex-gratia payments made by the CentralGovernment consequent on the abolition of the privy purse andfor the omission of the provision providing for exemption in respectof privy purse. Power is being taken to amend certain notificationsissued under Section 60A of the Indian Income-tax Act, 1922 andcontinued by Section 297 of the Income-tax Act, 1961, with aview to suitably modifying the notifications insofar as they relateto exemptions in favour of Rulers (clause 7 of the Bill).”

SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

One of the provisions which was amended was Section 5 of theWealth Tax Act, 1957. Section 5 of 1972 Act stated :- “In the Wealth-tax Act, 1957, in Section 5, in sub-section (1),—

(a) in clause (iii), for the words “any one building in the occupationof a Ruler declared by the Central Government as his officialresidence”, the words, brackets and figures “any one building inthe occupation of a Ruler, being a building which immediatelybefore the commencement of the Constitution (Twenty-sixthAmendment) Act, 1971, was his official residence by virtue of adeclaration by the Central Government’’ shall be substituted witheffect from the 28th day of December, 1971; (b) to clause (iv), the following provisos shall be added,namely: —

“Provided that in the case of jewellery recognised by the CentralGovernment as aforesaid, such recognition shall be subject to thefollowing conditions, namely: —

(i) that the jewellery shall be permanently kept in India andshall not be removed outside India except for a purpose andperiod approved by the Board:

(ii) that reasonable steps shall be taken for keeping the jewellerysubstantially in its original shape;

(iii) that reasonable facilities shall be allowed to any officer ofGovernment authorised by the Board in this behalf to examinethe jewellery as and when necessary; and

(iv) that if any of the conditions hereinbefore specified is notbeing duly fulfilled, the Board may, for reasons to be recordedin writing, withdraw the recognition retrospectively with effectfrom the date of commencement of clause (b) of section 5ofthe Rulers of Indian States (Abolition of Privileges) Act, 1972and in such a case, wealth-tax shall become payable by theRuler for all the assessment years after such commencementfor which the jewellery was exempted on account of the recognition.

Explanation.—For the purposes of clause (iv) of the foregoingproviso, the fair market value of any jewellery on the date of the A

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Awithdrawal of the recognition in respect thereof shall be deemedto be the fair market value of such jewellery on each successivevaluation date relevant for the assessment years referred to inthe said proviso:

Provided further that the aggregate amount of wealth-tax payableBin respect of any jewellery under clause (iv) of the foregoingproviso for all the assessment years referred to therein shall notin any case exceed fifty per cent of its fair market value on thevaluation date relevant for the assessment year in whichrecognition was withdrawn;”

CIt may be stated here that clause (iv) in Sub-Section 1 of Section5 of the Wealth Tax Act, 1957 before such addition stood as under:- “jewellery in the possession of any Ruler, not being his personalproperty, which has been recognized before the commencementof this Act by the Central Government as his heirloom or, whereDno such recognition exists, which the Board may, subject to anyrules that may be made by the Central Government in this behalf,recognize as his heirloom at the time of his first assessment towealth-tax under this Act.”

20. In 1974, State of Kerala passed Travancore-Cochin HinduEReligious Institutions (Amendment) Act, 1974 amending inter alia Section33 of TC Act as under:- “In section 33 of the principal Act, for the words “the Ruler ofTravancore” and “the Ruler”, in both the places where they occur,the words “the Government” shall be substituted.”FBetween 1974 and 1991, and even thereafter, various amendmentswere made to the TC Act but Chapter III of Part I of the TC Act hasremained unamended.

21. On 19.07.1991, Sree Chithira Thirunal Balarama Varma, whohad executed the Covenant as Ruler of the Covenanting State ofGTravancore, passed away. Since then, the appellant No.1 UthradamThirunal Marthanda Varma had been exercising all functions as “Rulerof Travancore” with respect to the affairs of the Temple till the Judgmentwas passed by the High Court in the present case.

22. Apart from the decision of this Court in Madhav Rao JivajiHRao Scindia[12],two cases having some relevance to the present controversy were dealt with by this Court during 1991-1994. Those caseswere:-

a) On 28.11.1991 a Bench of three Judges of this Court renderedits decision in Revathinnal Balagopala Varma vs. His Highness ShriPadmanabha Dasa Bala Rama Varma (since deceased) and others[13]and connected matters. The properties which were described as privateproperties by the Ruler of Travancore, the details of which were part ofthe inventory appended to the Covenant entered into on 27.05.1949,were subject matter of ceiling proceedings taken under the Kerala LandReforms Act, 1963. The proceedings resulted in declaration that 191.23acres out of the holding held by the respondent No.1 in the said matterwere surplus over the permissible extent. The decision was challengedby the members of the family submitting inter alia that those propertieswere tarwad properties and ought to be treated as belonging to differentfamilies which constituted independent units in the tarwad and as such,said properties were divisible amongst said appellant and respondentsNos.1 to 34 in equal shares. It was accepted by this Court that thesuccession would be governed by Marumakkathayam Law. It wasobserved in the leading judgment by N.D. Ojha, J.:- “62. That respondent 1 was a sovereign and the properties indispute as held by the sovereign rulers from time to time wereimpartible has not been disputed by the learned counsel for theappellant before us. What has been urged by him, however, isthat the properties in dispute belonged to a tarwad and were assuch joint Hindu family properties and the attribute of impartibilityapplied to them because by custom only the eldest member of thefamily could be the ruler and to maintain his dignity and status itwas necessary to make these properties impartible.

63. In this connection it has to be kept in mind that the mode ofsuccession of a sovereign ruler and the powers of such a rulerare two different concepts. Mode of succession regulates theprocess whereby one sovereign ruler is succeeded by the other.It may inter alia be governed by the rule of general primogenitureor lineal primogeniture or any other established rule governingsuccession. This process ends with one sovereign succeedinganother.Thereafter what powers, privileges and prerogatives areto be exercised by the sovereign is a question which is not relatable A

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Ato the process of succession but relates to the legal incidents ofsovereignty.”

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It was then concluded that the properties in Suit were not jointfamily properties, but were the personal properties of the said respondentBNo.1.

In his concurring opinion, Ranganathan, J. agreed with theconclusions arrived at in the majority judgment. It was observed byRanganathan, J. as under:- C“9. One of the factual aspects on which reliance is placed by thelearned counsel for the appellant for claiming a family origin tothe Ruler’s properties is that the properties of the rulers havepassed on from one ruler to the next even though the latter wasnot a direct lineal descendant. It is urged that, if the propertieshad been the personal properties of the ruler, they would haveDdevolved on his personal heirs on his death. In my opinion, this isnot a very helpful argument. All the properties held by a monarchor ruler devolve by the rule of primogeniture, there being nodistinction in this regard between his personal properties and thoseheld by him as ruler. But this need not necessarily be linealEprimogeniture. It could be general primogeniture, the successorto the rulership being determined according to some prevalentcustom. The properties will devolve on the successor so decidedupon. The fact that the successor is determined on the basis ofmarumakkathayam law no doubt causes the properties to devolveon the next karnavan who succeeds to the rulership. But thisFdoes not necessarily lead to the inference that the properties heldby the Ruler are the properties of a tarwad. The devolution is bysuccession from ruler to ruler and not one by way survivorshipunder the marumakkathayam law due to one karnavan takingthe place of a deceased predecessor. This circumstance doesGnot, therefore, in my opinion, establish the appellant’s claim.”

b) The validity of the Constitution (Twenty Sixth Amendment)Act, 1971 was under challenge in this Court and by its Judgment dated H

04.02.1993 in Raghunathrao Ganpatrao vs. Union of India[14] theConstitution Bench of this Court rejected the challenge. We shall dealwith the challenge to said Amendment and the decision of this Court inRaghunathrao Ganpatrao[14] later.

23. In the backdrop of these circumstances and developments,the stand taken by the State in the concerned Suits as well as in the WritPetition may now be considered. It was submitted on behalf of the Statethat the Temple had always been accepted as that of Travancore Palace.

A) In its Written Statement filed in O.S. No.625 of 2007, theState had submitted:-

“As per the TCHRI Act 1950, Chapter III is headed as ‘SreePadmanabha Swami Temple’ by which sections 18 to 23 specifiesthe right of the Ruler of Travancore in owing and administeringthe temple. As per the said Act, Administration of SreePadmanabha Swamy Temple and Sree Pandaravaka propertiesand all other properties and funds of the said temple is vested intrust in the Ruler of Travancore and under the control andsupervision of the Ruler of Travancore by an Executive Officerappointed by him. The said Chapter III of the Travancore CochinHindu Religious Institutions Act emphatically declares the right ofthe Ruler of Travancore in owning and administering the SreePadmanabha Swamy Temple. The provisions of the TravancoreCochin Hindu Religious Institutions Act 1950 backed by theCovenant is guaranteed by the Constitution of India in the Art363(1).

7. It is humbly submitted that there are several great temples inKerala, which are not under the administrative control ofTravancore Devaswom Board or Cochin Devaswom Board orunder any Devaswom Committees. Famous temples likeChakkulathukavu Bhagvathy Temple, Mannarasala Sree NagarajaTemple are a few examples of such family temples. There arealso many temples owned by private Trustees and local organizationof Hindus too like the Attukal Bhagavathy Temple, PazhavangadiGanpathy Temple etc. Sree Padmanabha Swamy Temple is alsosuch a family temple trust owned and managed by the Travancore A

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APalace, and protected by the specific provision of the TravancoreCochin Hindu Religious Institutions Act.

8. It is submitted that the question whether the present Maharajafalls within the definition of Ruler of Travancore or not is a differentmatter not directly connected with the moot question. The onlyquestion to be considered is whether there is any public andcompelling ground for the Government or Travancore DevaswomBoard to take over the administration of Sree Padmanabha SwamyTemple. The legal technicalities and procedures arise only oncethe need for take over is established. The traditional and customarybelief that has been for long recognized and accepted is that SreePadmanabha Swamy Temple belongs to “Sree PadmanabhaDasas”, the Royal family head of Travancore Palace and theycommand high regard respect and esteem form the public. In thecase of Sree Padmanabha Swamy Temple, there seems no validreason for Government to interfere in the administration of thetemple. The administration of the temple has not broken downnor is there any other allegation of a major nature, which forcesGovernment to interfere in the administrative affairs of the temple.There is no vaild necessity or public purpose, which requiresGovernment to take over the temple. In such a circumstances,Government do not desire to interfere or take over theadministration of Sree Padmanabha Swamy Temple which istraditionally and historically accepted as the temples of TravancorePalace. In the light of the above facts it is submitted that theaverments raised in the suit may be dismissed.

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Hence, it is humbly submitted that, since this suit isunnecessarily instituted, the Hon’ble Court may be pleased toaccept the written statement filed by the Addl. 3[rd] respondent andthe suit may be dismissed with costs to these defendants.”

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B) In its affidavit in reply in W.P. (Civil) No.36487 of 2009, theState submitted:- G

“5. It is submitted that, as per the TCHRI Act, 1950, Chapter IIIis headed as Sree Padmanabha Swamy Temple by which Section18 to 23 specifies the right of the ruler of Travancore inadministering the temple. As per the provisions of the said Act,administration of Sree Padmanabha Swamy Temple and Sree H

Pandaravaka properties and all other properties and funds of thetemple is vested in trust in the Ruler of Travancore and under thecontrol and supervision of the Ruler of Travancore by an ExecutiveOfficer appointed by him. The said Chapter III of the TCHRIAct emphatically declares the right of the ruler of Travancore inadministering the Sree Padmanabha Swamy Temple.

6. It is humbly submitted that there are several great temples inKerala which are not under the administrative control ofTravancore Devaswom Board or Cochin Devaswom Board orunder any Devaswom Committees. Famous temples likeChakkulathukavu Bhagavathy Temple Mannarassala SreeNagaraja Temple are a few examples of such temples which isrun by particular family. There are also many temples owned byprivate trustees and local organisations of Hindus like the AttukalBhagavathy Temple, Pazhavangadi Ganapathy Temple etc. SreePadmanabha Swamy Temple is essentially a temple trust managedby the Travancore Palace as per the terms of Chapter III ofTCHRI Act and protected by the specific provisions of TCHRIAct.

7. It is submitted that the question whether the 5[th] respondentfalls within the definition of Ruler of Travancore or not, is a differentmatter. The question to be considered is whether – there is anypublic necessity and compelling ground for the Government totake over the administration of Sree Padmanabha Swamy Temple.It is submitted that all other questions pertaining to the legaltechnicalities and procedures arise only when the need for takeover is established.

8. It is submitted that the traditional and customary belief that hasbeen for long recognized and accepted is that Sree PadmanabhaSwamy Temple belongs “Sree Padmanabha Dasas”, the royalfamiy head of Travancore Palace and they command high regard,respect and esteem from the public. In the case of SreePadmanabha Swamy Temple, there seems no valid reason forthe Government to interfere in the administration of the temple.It is submitted that, the administration of the temple has not brokendown nor is there any other allegation of a major nature whichforces the Government to interfere the administrative affairs ofthe temple. There is no valid necessity or public purpose which AB

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Arequires the government to take over the temple. In such acircumstance, the Government do not desire to interfere or takeover the administration of the Sree Padmanabha Swamy Templewhich is traditionally and historically accepted as the temple ofTravancore Palace. It is submitted that the Government havealready filed a detailed written statement in OS 625/2007 pendingBon the file of Principal Sub Court, Thiruvananthapuram. None ofthe grounds raised in the Writ Petition are sufficient to hold thatthe interference by the government in the administration of thetemple is called for.

So, it is most humbly prayed that this Hon’ble Court may be pleasedCto uphold the above contention and dismiss the above writ petition.”

24. After considering rival submissions, the High Court in itsjudgment under appeal observed:-

“Admittedly the Ruler of Travancore i.e. the late Sri. ChithiraDThirunal Balarama Varama who ruled Travancore as King for 18years (1931 to 1949) and who was the Rajapramukh ofTravancore-Cochin for six years thereafter and who managedthe Padmanabhaswamy Temple until his death on 20.7.1991, neverclaimed that the Sree Padmanabhaswamy Temple was the familyTemple of the Royal Family or as individual property of himself.EIn fact, he succeeded in a Suit filed by one of the family membersduring his life time seeking partition of the assets of the RoyalFamily as properties of the joint family. The last Ruler’s contentionthat he was not a Karanavan of the family and the Royal Familywas not a joint family were accepted at all levels of litigationFincluding the Supreme Court. Even though the last Ruler executeda detailed will bequeathing his personal properties, he had notincluded the Sree Padmanabhaswamy Temple as his personalproperty or dealt with the same in the Will. Admittedly the GreatTemple was although in history recognized as a public Temple runwith it’s own income, contributions from the State and offeringsGfrom devotees. The King ruled the State and managed the templeas a State temple and he was also a traditional participant in therituals and ceremonies of the temple; mainly in the Arattu festival.Both in the Covenant namely Article VIII(b) of the AccessionAgreement and in Section 18(2) of the TC Act what is stated isHthat the “Temple is vested in trust in the Ruler of Travancore.”

Obviously if Temple was the family property of the Royal Familyor the private property of the King, then there was no need forspecific provision in the Accession Agreement or in the TC Actproviding for vesting of the Temple in trust in the hands of the lastRuler of Travancore. The conspicuous word used to qualify vestingis “in trust” which means that it is for the benefit of somebody.The beneficiaries obviously are the devotees, the State and thepublic at large and all those who have an interest in the Temple.So much so, we have to necessarily conclude that the last Rulerwas only a trustee who has retained the control of the Temple forthe benefit of the devotees, the State and the public at large. Section18(1) of the TC Act which provides for continuous funding of thetemple by the State Government at the rate of Rs.6 lakhs annuallyclearly establish that this is a public temple, though during the lifeof the last Ruler, he was allowed to manage the same. In thiscontext the term “Ruler” used in the Covenant of AccessionAgreement and in Section 18(2) of the TC Act probably has onlya literal meaning to describe Sree Chithira Thirunal BalaramaVarma who was the last Ruler of Travancore and the signatory tothe Accession Agreement. If at all “Ruler” has a technical meaning,certainly in the absence of a definition in the TC Act which wasenacted after the Constitution came into force, the definitioncontained in the Constitution namely, Article 366(22) has to beadopted. Obviously the first petitioner in W.P.(C) No.4256/2010or his successors of the Royal Family will not come within thedescription of “Ruler” as defined under Article 366(22) of theConstitution and the only persons who answers the definition isthe last Ruler and after him no one can acquire that status whichis not heritable. So much so, we hold that neither the said petitionersnor any of the successors of his family can claim control ormanagement of the Temple under Section 18(2) of the TC Actafter the death of the last Ruler.”

With regard to the submission based on Article 363 of theConstitution, it was observed:-

“So far as the contention of the first petitioner in W.P. (C) No.4256/2010 that Article 363 bars the jurisdiction of courts including theHigh Courts and Supreme Court with regard to dispute arisingunder agreement executed by Rulers of Princely States of India, AB

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we have based on the Constitution Bench decision abovereferredand in view of the specific provisions of Chapter III contained inthe TC Act and going by the contention of first petitioner in W.P.(C)No.4256/2010 itself, found that the claim of the said petitioner orany of his family members over the Temple have to be found notunder the provisions of Covenant of Accession Agreement, butunder the provisions of Section 18(2) of the TC Act and Article366(22) of the Constitution. Since we are considering the rights, ifany, of the first petitioner in W.P.(C) No.4256/2010 based on theprovisions of the Constitution and the provisions of Chapter III ofthe TC Act, Article 363 of the Constitution does not stand in ourway and this court has full and complete jurisdiction to decide allmatters arising in these two W.P.(C)s., which, though are interpartycases, are essentially in the nature of public interest litigations,wherein this court is called upon to decide the claim of an individualover a Great Temple against the claim of the devotees, public andthe State as a whole on the other side.”

It was further observed:-

“In this case it is the case of the petitioners in W.P.(C) No.4256/2010 itself that the provision of the Covenant regarding the vestingof management of the Padmanabhaswamy Temple in Trust in thelast Ruler of Travancore in the Accession Agreement isincorporated in Section 18(2) and so much so, the last Rulermanaged the Temple not by virtue of the provision in the Covenant,but by virtue of the statutory provision contained in Chapter III ofthe TC Act. In fact, during the period of management of theTemple by the last Ruler, the entire contributions payable by theState was paid to the Temple and there is no dispute on that. Thefeeble contention raised by the petitioners in W.P.(C) No.4256/2010 that the Sree Padmanabhaswamy Temple is a family templeof the Roayl family of Travancore can only be styled as absuredbecause in several judgments of this court this Great Temple isrecognized as a “public temple” and in fact, it was the most famousTemple in the erstwhile Princely State of Travancore. In fact, aDivision Bench of this court vide judgment in O.P. No.18309/2000 (produced as Ext.P1 in W.P.(C) No.36487/2009)categorically held that Sree Padmanabhaswamy Temple is a publictemple which is one of the Mahakshetra of the Hindus and ifthere is any complaint by any worshiper of the Temple, that will

be considered by this court and the court will try to do justice.The claim of the first petitioner in W.P.(C) No.4256/2010 that hebecame the Ruler of Travancore on the death of the last Rulerhas no basis at all after the Twenty Sixth Amendment to theConstitution. We have already found above that the successorsof the last Ruler including the first petitioner in WPC No.4256/2010 does not fall within the definition of “Ruler” under Article366(22) of the Constitution. In fact, after the Twenty SixthAmendment of 1971, the President of India also ceases to haveauthority to recognize any person as the Ruler of Indian State ora successor of such Ruler. So much so, in our view, the contentionof the first petitioner in W.P.(C) No.4256/2010 that he beingbrother of the last Ruler becomes the Ruler of Travancore afterthe death of the last Ruler, is only absurd. In other words, on thedeath of any person who remained recognized by the Presidentas Ruler prior to the commencement of the Constitution will nothave any successor in the capacity as Ruler of the State. WhatArticle 366(22) seeks to achieve is to abolish the status of Rulerand under this definition clause, the status of Ruler and under thisdefinition clause, no one can acquire the status of Ruler after thecommencement of the Constitution much less through succession.

In short “Ruler” is not a status that could be acquired throughsuccession. Therefore, after death of the last Ruler on 20.7.1991,there is no Ruler in the erstwhile State of Travancore. So muchso, we hold that the first petitioner in W.P.(C) No.4256/2010 whois the 5[th] respondent in the connected W.P.(C), cannot step intothe shoes of the last Ruler to claim management of the SreePadmanabhaswamy Temple by relying on the powers conferredunder Section 18(2) of the TC Act.”

In paragraphs 8 and 9 the High Court observed:- “8. We have to, therefore, proceed to consider what should bedone to save the Temple and to protect the interest of thedevotees and the public at large who have great faith in thisGreat Temple which is also recognized as a structure ofArchaeological importance by the 6[th] respondent inW.P.(C)No.36487/2009. In this context it is worthwhile to referto the decision of the Supreme Court in 2007(7) SCC 482 wherein the Supreme Court has held as follows:

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“The properties of deities, temples and Devaswom Boards,require to be protected and safeguarded by their trustees/archakas/ shebaits/ employees. Instances are many wherepersons entrusted with the duty of managing and safeguardingthe properties of temples, deities and Devaswom Boards haveusurped and misappropriated such properties by setting up falseclaims of ownership or tenancy or adverse possession. This ispossible only with the passive or active collusion of the authoritiesconcerned. Such acts of “fences eating the crops” should bedealt with sternly. The Government, members or trustees ofboards/trusts and devotees should be vigilant to prevent anysuch usurpation or encroachment. It is also the duty of courtsto protect and safeguard the properties of religious andcharitable institutions from wrongful claims ormisappropriation.”

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Since the deity is a perpetual minor in the eye of law, the courthas jurisdiction to protect it and this court has in the judgment inO.P. No.18309/2000 held that Sree Padmanabhaswamy Templebeing a public temple this court has jurisdiction as parent patriae.All public temples in the erstwhile State of Travancore are nowmanaged by the Travancore Devaswom Board under the TC Act.Government is also funding temples in terms of provisions containedin Article 290-A of the Constitution. In fact, substantial amountof contribution is paid by the Government under the provisions ofthe TC Act to the Devaswom Board and to the SreePadmanabhaswamy Temple separately. After the death of thelast ruler of Travancore, the present Ruler happens to be the StateGovernment and so much so, by operation of Section 18(2) of theTC Act, the temple on death of the last Ruler reverts back to theState for administration by it. Obviously the State being secularcannot run a temple and so much so, it is for them to constitute atrust or statutory body like the Guruvayur Devaswom to administer D

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the Sree Padmanabhaswamy Temple. The stand taken by theGGovernment has not role in the matter and like other private templesrun in the State, Sree Padmanabhaswamy Temple is also run byan individual with the help of Executive Officer and AdvisoryBoard constituted by them.

Government obviously has not answered the query raised by theHcourt as to whether the present management has legal authority to run the Temple and if not, what is the step to be taken by theGovernment to arrange for management of the Temple. Accordingto the Government, the Temple is fairly well run and there is noneed for the Government to interfere in the matter. We do notthing the approach of the Government is fair, reasonable or legal.We have concluded above that the provision in Chapter III of theTC Act was only to give effect to the provision in the AccessionAgreement whereby the Ruler of Travancore wanted to retaincontrol of the Sree Padmanabhaswamy Temple during his lifetime. In the absence of any provision in the Covenant or in theTC Act to vest the Temple in the next senior member of the RoyalFamily after the death of the Ruler of Travancore, the Templeand its properties and assets will revert back and vest in the StateGovernment under Articles 295 or 296 of the Constitution.

Obviously if separate provision was not made in the Covenantand later by incorporation of the same in Chapter III of the TCAct vesting this Great Temple in trust in the Ruler of Travancore,it would have gone under the management of the TravancoreDevaswom Board or probably a separate authority would havebeen created by the Travancore-Cochin Government to run theTemple. When there is no provision in the TC Act for successionof management from the Ruler of Travancore on death of theRuler, the provisions of law will take over the situation.

We have already found that under the definition clause in theConstitution (Article 366(22)), neither the first petitioner in W.P.(C) No.4256/2010 nor any of the members of the Royal Familywhich ruled Travancore prior to integration, answers the descriptionof “Ruler” and so much so, relatives of the late King have no rightover the Temple.

So much so, in the literal sense and by virtue of the operation ofArticles 295 and 296 of the Constitution, the Temple vests in StateGovernment through succession or escheat or atleast as the presentRuler of the State. Therefore, Government necessarily have tomake arrangement for creation of authority, statutory or otherwise,to take over management and for running the Temple. In our view,the opinion of the State about private temples in the State, conveyedto us in court by the Government Pleader, itself is not going toadvance any public interest. Ever so many private temples have AB

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Aassumed great importance and have accumulated wealth whichis nothing but contribution from the devotees and public. Whereverpublic money is collected by temples and religious institutions, wefeel Government has a duty to ensure that such public institutionsare accountable to the devotees. We feel it is high time regulatorymeasures are made in the State to prevent plundering of the publicBmoney in the name of God and faith. Public money collected intrust for the Deity or for religious institutions, should never beallowed to be diverted for personal gains and if it is permitted, thesame amounts to permission to carry on business in faith or in thename of God. The question is whether the Government shouldCallow religion and faith to be made a business activity by privateindividuals or trusts. We are constrained to observe that the attitudeof the Government in this matter is not helpful to the interest ofthe State or to the devotees or to the public at large. We havealready noticed that besides being a Hindu Temple, where peopleardently worship, the Sree Padmanabhaswamy Temple is aDbuilding of great architectural value and it’s treasures are worth-preserving and protected and exhibited for the public to view thesame. The operation of Section 18(2) of the TC Act after thedeath of the last Ruler of Travancore should not lead to anyorphanage for the temple as we have already found that neitherEthe first petitioner in W.P.(C) Nol.4256/2010 nor any of his familymembers get any right in management or control of the SreePadmanabhaswamy Temple. So much so, Government being thesuccessor to the assets and institutions of the erstwhile PrincelyState of Travancore, it is the duty of the Government to makearrangement in the same way once State-run temples were handedFover to Devaswom Boards.

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9. It is a well known fact that the Temple has immense treasures,some of which are centuries old and are highly valuable by virtueof it’s antique value and it’s price in terms of the value of preciousmetals like gold, silver and stones used in the making. Even thoughwe directed the present management to produce the inventoryprepared by the last Ruler, about which there is a mention in thebook written by the previous Ruler’s niece namely, Smt. GouriLakshmibhai, they refused to produce the same. Some registersproduced in the Court were thoroughly incomplete and unreliable.In view of the public claim made by the last Ruler’s brother who G

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is presently managing the Temple that the treasures belong to theRoyal Family of Travancore, the injunction granted by the SubCourt against opening any of the Kallaras (storage place in theTemple) and removal of any valuable item, should continue inforce and we order so. However, the management is free to usesuch of the items which are required for the regular rituals andceremonies in the Temple. In our view, there is no purpose inkeeping the treasures of the temple acquired by it in the course ofseveral centuries as a mystery and if all the storage rooms(Kallaras) are opened and the treasures are exhibited in a Museumto be set up in the Temple Compound, the glory of the Temple andthe State will get a boost and probably the Great Temple willbecome a major tourist attraction and income earner. The authorityconstituted by the Government should also verify the inventoriespreviously prepared and check whether any item is lost from thecustody of the Temple and if so, proceed to identify the personswho have taken away the same and take steps to restore it to theTemple.”

With these conclusions, the directions as quoted hereinabove wereissued by the High Court.

25. Challenging the decision of the High Court, the appellants inthe Special Leave Petition, from which the first of the instant Appealsarise, inter alia, raised following grounds :-

“C. The petitioner submits that the temple and its properties, asprescribed by the Covenant dated 1[st] July 1949, ought to remainvested in Trust and the Petitioner, being the senior-most malemember of the Royal family, will hold and administer the same asthe Trustee of the Temple, through an Executive Officer.

D. As opposed to the tenor, in which the entire impugned judgmentproceeds, the Petitioner, in the past, has donated considerableamount of money, as and when it was required, for the smoothfunctioning of the temple and conduct of rituals and festivals. It issubmitted that the Petitioner has always supplied the deficit asand when required by the temple. In fact, in 1686 AD, when theentire temple was burnt to the ground, the predecessor of thePetitioner, Marthanda Varma, rebuilt the temple in its entirety overa period of 15 years.

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AF. Because the Division Bench has failed to notice that the SreePadmanabhaswamy Temple and its properties (also called “SreePandaravaka”) remained vested in the presiding deity of theTemple, Sree Padmanabha, even before the TrippadiDanam ofthe State (that is, surrender of the State to the Lord by H.H.Anizham Thirunal Marthanda Varma Maharaja in the year 1750).BThe hereditary trusteeship of the Temple remains with the Rulerof Travancore, and the original concept of trusteeship remainsunaffected; this being fortified by the absence of any enactmentdepriving the Family of its trusteeship.

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Despite a large proportion of these endowments having been madeby the erstwhile Royal family of Travancore, and that LordPadmanabha is considered the family deity of the erstwhile Royalfamily, the Petitioner asserts that the Padmanabhaswamy templeis a public temple, and no claim can probably be made by theDPetitioner or anyone to owning the temple or its treasures. ThePetitioner as the Padmanabhadasa merely seeks to recover theright as a trustee of the temple to manage and administer it, whichhas unfortunately been taken away by the impugned judgmentand vested, in the State Government as the successor ‘Ruler’.EThe Petitioner retains the right to perform all the traditional ritualsand ceremonies in the same manner as has been performed forhundred years.”

26. In its Order dated 02.05.2011, this Court directed:- “Interim stay of direction (i) of the 2 impugned judgment whichFdirects taking over the assets and management of SreePadmanabhaswamy Temple, Thiruvananthapuram.

Interim stay of directions (ii) to (iv) of the impugned judgmentsubject to the following interim directions:

(a) There shall be a detailed inventory of the articles/valuables/Gornaments in Kallaras described as (a) to (f) in the SecondSchedule to the Plaint in O.S. No.625/2007 on the file of the Sub-Judge, Thiruvananthapuram. The inventory shall be held in thepresence of the following observers:- H

(i) Two observers appointed by this Court namely, Justice M.N.Krishnan and Justice C.S. Rajan, retired Judges of Kerala HighCourt.

(ii) The first petitioner and second petitioner.

(iii) A senior officer of the State Government, namely theSecretary, Devaswom Department or his nominatedrepresentative.

(iv) A senior officer nominated by the Secretary, Departmentof Archeology, Ministry of Culture, Government of India, whois stationed at Kerala.

(v) The PIL petitioner (first respondent).

Justice M.N. Krishan shall be in charge of organising theinventory, fixing of schedules. The entire expenditure of inventoryshall be met by the petitioners. He is also authorised to seek policesecurity at the time of such inventory. The observers shall decideupon the procedure and documentation of the inventory includingvideographing and photographing the articles.

(b) In regard to the articles in Kallaras (c) and (d) used for regularrituals and the ornaments etc. in Kallaras (e) and (f) said to be inthe custody of Periya Nambi and Thekkedom Nambi, the existingpractices, procedures and rituals may be followed in regard to theopening and closing of the Kallaras and using the articles therein.As far as Kallaras (a) and (b), which is reportedly not opened formore than a century, they shall be opened only for the purpose ofmaking inventory of the articles and then closed and sealed again.

(c) The inventory shall be filed in this Court and copies of theinventory be given to all participating parties and observers.

(d) The existing temple security shall be further strengthened byadditional security from the local police.

(e) The first petitioner and his family shall be entitled to participatein all temple festivals and rituals as hitherto before.”

27. The Order passed by this Court on 21.07.2011 noted the standof the State and of the appellants as under:- “The State of Kerala in its affidavit dated 14.7.2011 has declaredits stand on the issues as follows: - A

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AOwnership:

All articles found in the Kallaras of Shree Padmanabha SwamiTemple (including objects of value gold ornaments, precious stonesand antiques) belong to the deity (Temple) and neither the StateGovernment nor the family of ex-rulers of Travancore can haveany claim over them.

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The ornaments/antiques are not suitable or sufficient for creatinga separate museum. All the articles being property of the temple,should remain within the confines of temple premises. It is neitherpractical nor advisable to remove them from the temple environs.

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Security:

A senior officer of the rank of Additional Director General ofPolice has been put in special charge of the security of the temple.A control room has been made operational. A special team ofPolice officers has been entrusted with the task of studying thesecurity requirements. Ensuring adequate security for the templeis the primary responsibility of the government and it will doeverything necessary for acquisition of the state-of-the art securitysystems (which are least obtrusive and most effective) and installthem shortly. The temple will be guarded round-the-clock.Commandos have been posted to guard the gates.

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2. The petitioners (Sri Marthanda Varma the sole trustee and theExecutive Officer of the temple) have expressed their views inthe affidavit dated 14.7.2011 filed by the Executive Officer:- F

Ownership:

All articles, ornaments, valuables, precious stones, antiques withoutexception found in the Kallaras belong to the Presiding Deity ofShree Padmanabhaswamy Temple and neither Mr. MarthandaVarma nor his family members have any claim over them. Mr.Marthanda Varma merely administers the property/assets of thedeity and the temple as the Trustee.

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The articles found in Kallara ‘A’ can be segregated into threecategories:

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(i) Articles having historic/heritage/artistic value considered“priceless”, can be kept in the Kallara itself, and taken outperiodically for being exhibited on special occasions, within thetemple premises for the benefit of the devotees and general public.

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(ii) Even articles which have only some historic/ heritage/artisticvalue, and cannot be considered to be ‘priceless’ shall also bekept in the safe custody in the Kallara.

(iii) Articles having monetary value but no historic/heritage/artisticvalue, could be disposed of and the proceeds used for purchasingimmovable properties, for renovation and maintenance of thetemple and for education including establishment of a ‘VedaPathasala’ and a ‘Thanthirika Peedom’ for imparting training andgrooming temple priests.

Inventory:

Videography and photography of the articles in Kallara ‘A’ maybe avoided, as the inventory has already been completed. But if itDis found that videography/photography is necessary for completingthe inventory, the same may be carried out strictly under thesupervision and the films/cartridges shall be deposited in a sealedcover so that unauthorized copies are not made.As the primary object of the inventory is to ascertain what isEavailable and not disposal or sale, there is no need to have avaluation. However the services of a conservationist or expert inantiques may be availed for categorizing the articles and completingthe inventory in a scientific manner.Security arrangements:F

Security arrangements:

While installing security systems, in particular CCTVs and otherelectronic devices, care should be taken in regard to two aspects.First is that the customs/traditions of the temple should be respectedand taken note of. Second is that worship by the devotees shouldnot be disturbed. The Police personnel on security duty, wheninside the temple, should be unobtrusive and comply with the dresscode of the temple.

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4. After considering the submissions made during arguments andthe suggestions in the affidavits, we find that action is required inthe following areas :

(a) A detailed inventory of the articles in Kallaras A and C to Fwith videography/photography shall have to be completed underBthe supervision of an Expert Committee. The videographer/photographer employed for this purpose shall have securityclearance from the local Police authorities.

(b) The services of Experts/Conservationists shall have to beavailed so that handling the articles at the time of inventory orCdisturbing the environment in which they were stored in theKallaras for centuries does not affect the articles.

(c) Adequate and proper arrangements will have to be made forsecurity. This would involve not only policing the premises butalso having security measures/systems as also provision of a strongDroom/vaults/steel lining in the Kallaras with the assistance of asecurity expert.

5. To achieve the aforesaid results, we hereby constitute thefollowing Expert Committee to advise regarding inventory,conservation and security :

E(1)Dr. C. V. Ananda Bose, : Co-ordinator Director General of National Museum and Vice-Chancellor, National Museum InstituteFNew Delhi.

(2) Prof. Dr. M.B. Nair, : Member

Head of Conservation Department,

National Museum InstituteGNew Delhi.

(3) Nominee of the Director, Archaeological : Member Survey of India (from its science/research wing).

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(4) Nominee of the Governor of Reserve Bank of India :Member who is an Expert from its security wing.

(5) The Executive Officer of the Temple

: Member

6. The said Expert Committee is entrusted with the followingresponsibilities:

(a) To organize the inventory by videography/ photography of thearticles in Kallaras A, C to F, and supervise such inventory andarrange for proper storage of the articles in the respective Kallarasafter completion of the inventory.

(b) To examine and categorise the articles into three groups: (i)Articles/ornaments having historic/heritage/ artistic/antique value.(ii) Articles that are required for regular use in the temple forreligious purpose. (iii) Articles and ornaments which cannot beconsidered to be having any historic/heritage/artistic/antique value,but having merely a monetary value.

(c) To draw up long term and short term measures for preservation,conservation, maintenance of the articles/ antiques in Kallaras ofthe Temple.

(d) Prepare a scheme for providing security measures in the templepremises and in the Kallaras.

(e) Examine whether any of the articles are worthy of exhibitionfor the benefit of the devotees and if so examine the feasibility ofcreation of a high security museum within the temple premises orthe adjoining museum.

(f) Examine and give an opinion whether it is necessary to openKallara ‘B’ at this stage.

7. In view of the constitution of the said Expert Committee, thereis no need to continue the large Committee of Observers. In placeof the seven member Observer Committee earlier appointed, thefollowing smaller Overseeing Committee is appointed to superviseand guide the working of the Expert Committee and to completethe inventory and continue as Observers :

(i) Justice M.N. Krishnan.

-Co-ordinator

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(ii) Mr. Marthanda Varma (or his special nominee) - Member

(iii) Secretary, Devaswom Department of - Member Government of Kerala (or his special nominee).”

28. The Expert Committee constituted by this Court made aninterim report, and furnished some additional information, based on whichfollowing directions were passed by this Court in its Order dated22.09.2011:- “We have examined the interim report dated 17.8.2011 of theExpert Committee and the additional information submitted on12.9.2011. Having considered the said report and the submissionsof the parties, the following interim directions are issued:

SECURITY MEASURES

1.1) The Expert Committee has identified thirteen security issuesand suggested sixteen security measures to be put in place. Acopy thereof has already been made available to the StateGovernment and the Temple Administration. The state governmenthas submitted the Security Technical Committee Report puttingforth an Integrated and Multi-Layered Security System for theTemple, for our perusal. In view of security concerns, we do notpropose to extract either the security issues raised or the securitymeasures suggested by the Expert Committee or the securedmeasures proposed by the state government.

1.2) The state government has submitted that it has the expertiseand capability to provide the necessary security measures; and itis ready and willing to provide the same at its cost. The stategovernment has assured that it would spare no effort or cost toprovide the best security cover and has stated that there is noneed to indent the service of any central security force like CRPFas suggested by the Expert Committee, for strengthening thesecurity. Having examined the Security Technical CommitteeReport furnished by the state government and its assurance toput in place an Integrated Multi-layered Security System for theTemple in a time-bound manner, we are satisfied that the stategovernment would be in a position to execute the security plan.There is no need for the state government to requisition the servicesof any central security agency.

1.3) The state government shall take note of the sixteen securitymeasures that have been suggested by the Expert Committee inits Interim Report dated 17.8.2011 and promptly implement theIntegrated Multi-layered Security System explained and suggestedin its Security Technical Committee Report. In implementing thesecurity system, the state government will take note of templetraditions, customs and practices, and accommodate the views ofthe temple administration as far as possible and feasible.

WORK PLAN

2.1) The Expert Committee has suggested ‘Digital Archiving ofTemple Antiques’ (for short ‘DATA’) to achieve the following : (i)Recording of detailed information after examination and assigningan Antique Identification Number/Code; (ii) to store the informationin a computerized Data Base; (iii) recording of a 3D image of theobject and link it to the data base. The Expert Committee ispermitted to implement the said ‘DATA’ procedure.

2.2) The Expert Committee has recommended appointment of 6Kerala State Electronic Corporation (KELTRON), a stategovernment undertaking with technical expertise from VikramSarabhai Space Centre (VSSC), an unit of Department of Space,for implementing the work plan. Having regard to the securityconcerns and approval of the said agency by the state government,we accept the suggestion that the ‘DATA’ work should be executedby the said government undertaking instead of inviting tendersfrom private agencies.

2.3) KELTRON has estimated the cost of executing the work tobe Rs.3,16,35,000/- made up of Rs.1,65,35,000/- for hardware,Rs.40,00,000/- for software, and Rs.1,11,00,000/- for services andmiscellaneous items. The cost appears to be very high and farexceeds the figures shown in the Interim Report. The feasibilityof borrowing/hiring the equipment can be considered. The softwarecost and servicing cost requires drastic reduction. However,KELTRON being a state government undertaking and VSSC, thetechnical expert being a unit of Department of Space, the ExpertCommittee may proceed to entrust the work to KELTRON afterinvolving the state government in the process of negotiations relatingto cost and the schedule of payment. We do not propose to A

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approve the said price. As the state government has to bear theexpenditure involved, it will take the final decision on the pricingafter negotiations, in consultation with the Expert Committee. Thestate government shall nominate a Nodal Officer for this purpose,failing which the Secretary, Devaswom Department shall be theNodal Officer.”

29. On 23.08.2012, Mr. Gopal Subramanium, learned SeniorAdvocate was appointed Amicus Curiae to assist the Court. Thelearned Amicus Curiae in his report dated 01.11.2012 madesuggestions with regard to conservation, renovation and restoration.During the course of his report, the learned Amicus Curiae madethe following observations:

“29. In this context, it may be necessary to mention that the SreePadmanabha Swamy Temple is an integral part of the traditionsof the Royal family of the erstwhile State of Travancore and alsothe people of Kerala (including the residents of the ancient city ofThiruvananthapuram). It is interesting to note that AshwathiThirunal Gouri Lakshmi Bayi (one of the members of the Royalfamily), in her book Sree Padmanabha Swamy Temple publishedby the Bharatiya Vidya Bhavan, interestingly refers to the Prakritversion and the final Sanskrit version of Sree Anandapuram fromSyanandoorapura. The Sree Padmanabha Swamy Temple isconnected to twenty four holy teerthams and is also linked withcertain other temples, many of which are in the State of TamilNadu. It may be noted that even today, Mathilakom records orthe palm leaves scrolls which recorded the ancient history of theTemple and that of the erstwhile State of Travancore are availablein the Temple premises and in the Kerala State Archives.

30. It must also be noted that the idol of Lord Padmanabha ismade using katu sharkara yogam (a complex mixture of 8 naturalingredients) in which 12008 Salagramas were filled in. This idolmade using katu sharkara yogam was consecrated in the year1739 under the aegis of the erstwhile ruler of Travancore, VeeraMarthanda Verma (1706-1758). Salagrama is not a mere stonebut a stone of longstanding tradition and spiritual potency in whichit is believed that Hari or Lord Vishnu resides (hence, yathasalagrame hari). Thus, Eashwara or god manifests Himself insaguna forms in various ways – in the Salagrama as Vishnu, in the lingam as Shiva and in the chakra as Devi (Mother Goddess).Usually, when 12 salagrama shilas are worshipped, it equals thepotency of a mahakshetram or a great temple. Therefore, thesanctity of Sree Padmanabha Swamy Temple is a thousand fold.

… … …

34. At this juncture, it would be appropriate to mention that theTravancore Royal family is also called the Venadu Raja Vamshawhich is the off-shoot of Chera roya lineage and the Ayi royaldynasty, and has always regarded Lord Padmanabha Swamy astheir tutelory Deity and this is confirmed by many historical recordswhere Lord Padmanabha is addressed as‘yadavendrakuladaivatam’ or the family Deity of yadavakshatriyas(the present Travancore royalty); thereby confirming that SreePadmanabha Swamy is the ‘kuladaivta’ of the entire family. Itmay be noted that devotees other than royalty have worshippedLord Padmanabha Swamy as their ‘ishta daivta’ or God of one’spersonal choice.

35. It was in 1731 A.D. that the first King of the erstwhileTravancore Royal family, Sree Veera Marthnda Varma, wasanointed. He was succeeded by Rama Varma (1758-1798).Moreover, the Royal family consisted of deeply devoted memberswho were dedicated to the Temple and who believed that theirlives centred around Sree Padmanabha Swamy. In 1750 A.D.,the entire State of Travancore was gifted to this Deity by a Deedand the Rulers became servants of the Lord, calling themselvesas Padmanabhadasa. It may also be noted that many of theMaharajas were great composers of shlokas as well as music. Infact, many of the Rulers were protectors of the Vedas and thevedic tradition. Further, the Temple was governed by a council oftrustees called Ettara Yogam headed by the King.

36. One of the greatest Kings of the Royal family was Sri SwathiThirunal Maharaja Rama Varma (1813-1846) who was a greatpatron of the arts, literature, music and modern science. He wasan extraordinary King who presented an incorruptible system ofgovernance, framed the first code of regulations of Travancore,advanced English education, contributed to a collection of raremanuscripts and undertook a large number of social welfaremeasures. In fact, Sri Swathi Thirnal is regarded as one of the A

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four great vidwans of Carnatic music – they being MuthuswamyDikshitar, Thyagaraja, Shyamasastry and Swati Thirunal. TheKings including Sri Swathi Thirunal donated their personal wealthto the Temple and, as recorded by Dr. Ventkata Subramanya Iyerin his brilliant book ‘Swathi Thirunal and his music’, during hiseventful life, once when one of his courtesans presented a varnamin his honour, the King directed that it should not be used becauseonly Lord Padmanabha Swamy must be lauded with music.

… … …

38. In the submission of the Amicus Curiae, this Temple is one ofthe most ancient temples of Maha Vishnu and is priceless. TheAmicus Curiae however noticed that urgent measures are requiredfor the protection, preservation as well as the proper and effectivemanagement of the Temple. Thus, it may be added that the spritunderlying the judgment of the Kerala High Court as well as thevarious interim orders passed by this Hon’ble Court is to preserve,protect and manage the Temple along with inventorying all thetreasures which are contained in the Temple.

39. The Amicus Curiae noted that the various Kallaras or vaultsare an integral part of the Temple structure itself. In order toshow the same, the Amicus Curiae is annexing a copy of a planwhich indicates where Sree Padmanabha Swamy in the Sreekovil(sanctum) is residing and there is a mandapam outside and by theside of Narasimha Murthy is Kallara ‘A’ adjoined by Kallara ‘B’.While Kallaras ‘C’ and ‘D’ are on the other side of the Sreekovil.Kallaras ‘E’ and ‘F’ are close to the sanctum. The said map / planis annexed to this report and marked as Annexure B.

40. The treasures which are contained in these Kallaras are thecontinued offerings of the Royal family including the offerings ofother devotees. It may also be noted that the priceless jewels areintended for alankara of the Lord, gold ornaments, gold utensilsand many priceless treasures are also to be found in these Kallaras,including priceless gems and coins. Thus, there can hardly be anydoubt that all the treasures of the Temple belong to the TempleDeity, i.e. to Sree Padmanabha Swamy and nobody can claimotherwise (in fact, in the temples of South India, it is customaryfor people to offer various ornaments of gold and silver in temples which are then kept separately in those temples). No person mustbe allowed to take the riches of the Temple outside for anyextraneous purpose. The Amicus Curiae is of the opinion thatconsidering the stand of the State of Kerala as reflected in itswritten statement filed in O.S. No.625 of 2007 before the CivilCourt in Thiruvananthapuram and the interaction which the AmicusCuriae had with the Chief Minister, it is clear that the State wouldnot do anything by which any of the treasures of the Temple areutilised for any extraneous purpose or for any prupose unconnectedwith the Deity/Temple.”

30. In its Order dated 13.02.2013, this Court observed:- “2. Section 20 of the Travancore Cochin Hindu ReligiousInstitutions Act, 1950 provides that there shall be a committee toadvise the Ruler of Travancore in the discharge of his functions.The Committee shall be known as “Sree PadmanabhaswamyTemple Committee” and composed of three Hindu membersnominated by the Ruler of Travancore. The tenure of the membersof the Committee may be determined by the Ruler.

3. We are informed by Mr. K.K. Venugopal, learned senior counsel,that the Committee on January 8, 2013 resolved that the Trusteemay appoint a nominee of his choice to report the conduct ofadministration and to act according to the directions by the Trusteefrom time to time.

4. Pursuant to the above resolution, we are further informed thatthe Ruler (trustee) has nominated Mr. Adithya Varma as hishonorary nominee to report on the conduct of administration ofSree Padmanabhaswamy Temple and to act according to thedirections issued from time to time.

5. Mr. K.K. Venugopal also informed us that within 10 days fromtoday, the Executive Officer shall be appointed along with oneAssistant Executive Officer and as suggested by Mr. GopalSubramanium, learned Amicus Curiae, Mr. Gautam Padmanabhanshall be appointed as Assistant Executive Officer.

6. We accept the above statements of Mr. K.K. Venugopal.”

By its Order dated 11.12.2013, this Court appointed a Conservationand Restoration Committee to coordinate with Sri Kanippayyoor Sankaran AB

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ANamboothiripadu and Thantri of the Temple to supervise the conservation,restoration and renovation work.

After the death of the original appellant No.1 – Uthradam ThirunalMarthanda Varma, his successor Moolam Thirunal Rama Varma wasimpleaded in his place vide Order dated 09.04.2014.B

31. On 15.04.2014, a further Report was filed by the learnedAmicus Curiae along with his recommendations touching upon variousissues and topics including General Administration, Conservation ofStructures within the Temple, Security Arrangements, Special Audit ofthe Temple. He suggested that Special Audit of the Temple be conductedCfor the last 25 years. He also made recommendations with regard to thesecurity of Temple Property, contents of Kallaras.

32. An Administrative Committee came to be constituted asreflected in the Order dated 24.04.2014. The Order also directed specialaudit of the Temple to be conducted. The Order stated:- D

“Mr. K.K. Venugopal, learned senior counsel for the petitionersin SLP (C) Nos. 11295 of 2011 and 12361 of 2011 submits that theExecutive Officer and Administrative Officer of the SreePadmanabha Swamy Temple (for short “Temple”) have voluntarilydesired to go on leave for four months.

E2. We accept his statement.

3. Mr. K.N. Satheesh, IAS, Director, Higher Secondary Education,Government of Kerala is, for the time being, appointed as theExecutive Officer of the Temple until further orders.

4. By way of interim measure, an Administrative Committee toFdischarge day-to-day functions relating to the Temple is constituted.The Administrative Committee shall comprise of:

(i) District Judge, Thiruvananthapuram, Kerala, if he is Hindu andif he does not happen to be Hindu, then senior most AdditionalDistrict Judge of that District. The District Judge or AdditionalGDistrict Judge, as the case may be, shall be the Chairman of theAdministrative Committee.

(ii) Tantri S/Shri Satish Namboodiri, Saji Namboodiri, KuttanNamboodiri.

H(iii) Chief Nambi of the Sree Padmanabha Swamy Temple.

(iv) Two members to be co-opted by the District Judge, one ofwhom shall be co- opted in consultation with the Government ofKerala.

5. The keys of all the kallaras except kallaras “E” and “F” shallbe handed over to the Chairman of the Administrative Committeeforthwith.

6. The keys of the two Mudalpadi rooms (designated in the Reportas Kallaras ’G’ and ’H’) shall also be handed over to the Chairmanof the Administrative Committee forthwith.

7. The Administrative Committee shall immediately address thefollowing issues:

(a) Protection of Kannikaipura and its surveillance by installingCCTV cameras and other related issues; (b) The collection of Kanikkai shall be accounted at least oncea week, preferably every Saturday in the presence of theChairman of the Administrative Committee;

(c) Cleaning of the passage above the Kallaras within theSreekovil; (d) Cleaning of Temple tanks (Mitranandapuram andPadmateertham) in a time bound manner by a credible agency; (e) Improvement in living conditions of police personnelsguarding the Temple; (f) Any other issue which may be brought to the knowledge ofthe Chairman, Administrative Committee by the learned AmicusCuriae or State Government or Trustee.

8. A special audit of the Temple and its properties shall beconducted as early as may be possible, preferably by Shri VinodRai, former Comptroller and Auditor General of India. He will beat liberty to take services/assistance of any other person/personsin completion of this task.

9. Until further orders, no property of the Temple shall be alienatedor transferred or disposed of in any manner whatsoever.”

33. On 06.11.2014, an affidavit was filed by the Chief Secretaryof the State submitting:- A

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A“6. It is submitted that Shree Padmanabaswamy Temple(“Temple”), was initially part of the erstwhile Princely State ofTravancore and successive Rulers in the erstwhile Princely Stateof Travancore, considered Lord Padmanabha as their deity. On16.04.1960, the Travancore-Cochin Hindu Religious InstitutionsAct, 1950, was enacted on the basis of Article 8 of the CovenantBdated 01.07.1949 entered into between the Rulers of Travancoreand Cochin for the formation of the United State of Travancoreand Cochin.

… … …

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C8. It is thus submitted that, the administration of the Temple, SreePandaravaka properties, all other properties and funds of theTemple were vested in Trust with the Ruler of Travancore.

9. It is submitted that Sri Chithira Thirunal Maharaja, was the lastRuler and after his demise on 19.07.1991, the administration ofDthe Temple was assumed by his brother, the late Sri MarthandaVarma, who was the Original Petitioner before this Hon’ble Court,however now deceased.

… … …

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12. Further, it was also submitted before the Sub-Court by theGovernment that there are so many Temples in the State, forinstance Attukal Bhagavathi Temple in Trivandrum, ChakkulathuKavu in Alappuzha District etc. which are managed well by privateor family trusts. Therefore, the Government endorsed andFsupported the stand of the Defendant therein, i.e. the erstwhileroyal Family represented by Sree Marthanda Varma, that theadministration of the Temple shall continue to be conducted bythe erstwhile royal Family.

… … …

G18. It is submitted in the affidavit dated 23.04.2014, Sree MulamThirunal has inter alia informed this Hon’ble Court in paragraph8 of the said affidavit as follows:- “It is only when Valiya Thampuram Sri Utharadom ThirunalMarthanda Varma decided to file the Special Leave PetitionH

against the present impugned Judgment of the High Court, thathe was strongly advised to give up his stand that the temple isa private temple which vested in the family, and, on the otherhand, to take the stand that the temple is a public temple…”

… … …

20. It is submitted that with the coming into force of the Instrumentof Accession referred to above, as held by the Hon’ble High Courtin the impugned judgment, the term “Ruler” as appearing in Section18 in the Travancore-Cochin Hindu Religious Institutions Act andArticle 290-A of the Constitution of India is not a heritable right tobe continued ad infinitum. With the passing away of the lastRuler Sree Chithirathirunal Balaramavarma, Ruler and Rulershipare no more valid and legally sustainable.

21. However, it is categorically submitted that at no point of timehas the Government claimed the wealth to be Government property,nor do they intend to lay claim ownership of the said property. Onthe other hand, the Government states that the wealth is exclusivelythe temple property and it is inalienable except for the benefit ofthe temple and the devotees of the temple.

… … …

24. The answering respondent is also prepared to examine thefeasibility of bringing forward legislation preferably on the lines ofthe Guruvayur Devaswom Act, 1978 for the said purpose. As perthe said Act, there is a nine member Committee called theGuruvayur Devaswom Managing Committee of which, three arepermanent members. The three permanent members include theZamorin Raja of Calicut, The Karanavan of Mallissery Illam (headof the Mallissery family) and the Thanthri. Six non-permanentmembers are nominated by the Hindus among the Council ofMinisters, which includes a representative of the employees ofthe Devaswom and a person belonging to the scheduled caste.The Government is ready to carry out the necessary study in thisregard.

25. It is submitted that if the Guruvayur model is replicated in thecase of Sree Padmanabha Swami Temple, then the erstwhile royalfamily of Travancore can be given representation in the Managing A

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ACommittee by reserving one slot on a permanent basis and theThanthri could be the other permanent Member.”

34. The Order dated 05.05.2015 passed by this Court noted thesubmission of the learned Amicus Curiae that an audit be conductedwith regard to the account of Padmanabhaswamy Temple Trust and itsBproperties. It also noted the submission of appellants that a special auditfor the period had already been conducted, but he would not have anyobjection in cooperating with Mr. Rai. The Order, therefore, directed:-

“In the circumstances, therefore, we direct that a copy of theaudit report filed on behalf of the Padmanabhan Swamy Trust inCthis court for the period 01.04.2008 shall be forwarded to Mr. Raifor his perusal and evaluation. We further direct that in case Mr.Rai upon consideration of the audit already conducted is of theopinion that a fresh/special audit needs to be conducted for theperiod 01.04.2008 onwards he shall be free to undertake thatexercise in which case the Trust shall make available all suchDinformation and record as may be necessary for completion ofthat exercise. Mr. Rai will also do well to raise any query thatmay be relevant for completion of the audit to enable the trust toanswer them. We extend the time for completion of the audit till31.12.2015.

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We permit the State Government to approach the ExpertCommittee for scaling down the staff deployed for inventorisationand archiving of antiques and artifacts by KELTRON and ExpertCommittee who may upon consideration of any such request issueappropriate orders in that regard.

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Mr. Rai has in terms of communication dated 1.04.2015 raised ademand for a sum of Rs. 45,00,000/- representing the total feeincluding expenses etc. for the period up to December, 2015. Thereis no objection by any one appearing for the parties to the releaseof the said amount in favour of Mr. Rai. We accordingly directGthe Administrative Committee to release the amount billed by Mr.Rai.”

35. The Order dated 09.10.2015 noted the submissions with regardto customary form of awakening Lord Padmanabhaswamy in themorning, and left the issue to be decided by the religious head of theTemple as under:-H

“… …Having heard learned senior counsel for the parties on thisaspect of the matter, we are of the opinion that the issue could bemore appropriately left to be examined and resolved by the religioushead of the temple. It is common ground that Tharananellur SriParameswaran Namboodiripad, is the Chief Thanthri of thetemple. In our opinion, and as fairly conceded by learned seniorcounsel appearing for the parties including Mr. Subramanium,learned amicus curiae, all matters concerning permissible rituals,customary practices and pujas to be performed including the modeof awakening the Lord in the morning ought to be left to bedetermined by the Chief Priest (Thanthri) Tharananellur SriParameswaran Namboodiripad in his capacity as the ChiefThanthri of the temple. We accordingly do so. We make it clearthat Mr. Subramanium has categorically stated that he had nevermandated any change in the customary practices in the templeand that it is a matter that can indeed be left to the Chief Priest(Thanthri) Tharananellur Sri Parameswaran Namboodiripad,mentioned above to determine. It follows that the question whetherverses “Venkatesha Suprabhatam” should or should not be recitedin the morning for awakening the Lord is a matter left to bedetermined by the Chief Priest (Thanthri) Tharananellur SriParameswaran Namboodiripad. … …”

36. In March 2016, Report about Special Audit of SreePadmanabhaswamy Temple, its properties and Sree Padmanabha SwamyTemple Trust was filed by Mr. Vinod Rai, running into two volumesalong with “Major Audit- Observations and Recommendations”.

The Administrative Committee appointed by this Court resolvedon 13.06.2017 as under:- “the Committee is in the darkness on the financial position ofthe temple. Quarterly budget proposals should be preparedand communicated to the Committee. Similarly, monthlyaccounts statement should be placed before the Committeebefore 10[th] of every succeeding month. The matter will becommunicated to the Executive Officer.”

The resolution was communicated to the Executive Officer.

37. The Order dated 04.07.2017 passed by this Court noted thatby consensus Mr. V. Ratheesan, IAS, was nominated as Executive ABC

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AOfficer and he assumed charge on 18.06.2017. Said Order recorded theearlier directions issued on 09.05.2017 with regard to the essential repairsand while constituting Conservation Committee and Selection Committee,following directions were issued:- “5. Having given our thoughtful consideration to the rivalBcontentions advanced by the learned counsel, we are of the viewthat the security arrangements presently in place should be allowedto continue with the rider that the entire responsibility of securingthe properties and the assets of the temple will remain with theSuperintendent of Police, who is the person in-charge of theresponsibility.

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6. Mr. Gopal Subramanium, learned amicus curiae further pointedout that the working relationship between the AdministrativeCommittee and the Executive Officer needs to be clearly defined.

7. During the course of hearing, learned counsel for the rival partiesDwere agreeable that this Court clarifies, that the AdministrativeCommittee shall be in-charge of taking policy decisions as well asin regard to the manner of functioning of the temple, and that, thedirections issued by the Executive Committee shall be implementedby the Executive Officer. It was also submitted that the ExecutiveOfficer be made Member Secretary of the AdministrativeECommittee - to whom he should be answerable. We orderaccordingly. We also hereby further direct, that the ExecutiveOfficer as Member Secretary, shall discharge his duties wholetime.In this behalf, we would make a request to the State of Kerala toapprove the aforesaid arrangement within two weeks from today.

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8. It was also submitted by the learned amicus curiae, that eventhough there is a process in vogue whereby accounts of the templeand the trust are maintained, yet they are not subjected to anysupervision and control. It was pointed out, that the appointmentof a financial controller would lend credibility to the process ofGincurring expenses and maintenance of accounts. On examiningthe instant issue with the concurrence of learned counselrepresenting the rival parties, we request the State of Kerala tonominate a panel of three officers from the Indian Audit andAccounts Service, to overlook the audit and accounts of the temple,and to submit quarterly reports to the Administrative Committee,Hfor implementation of such suggestions as may be made in the report. We also hereby direct the same officer, nominated by theState Government as has been approved by the AdministrativeCommittee, to audit the accounts of Shri PadmanabhaswamyTemple Trust and to submit similar reports to the AdministrativeCommittee. We, therefore, hereby request the State of Kerala tosubmit its panel, for the consideration of the AdministrativeCommittee, within four weeks.

9. The next contention of Mr.Gopal Subramanium, SeniorAdvocate and learned amicus curiae was, that an immediateinspection of the Moolabimbams needs to be carried out, so thateffective repairs can be made to the deity before the onset ofDakshinayana (which commences from 15/16.07.2017). In thisbehalf, we are aware of the order passed by us on 09.05.2017wherein we had recorded as under:

“4. A Committee of experts comprising VezhapparambuNamboodripad, Satheesh Ezhumtholi and Cheruvally wouldundertake a complete inspection of the Moolabimbams andadvise a suitable course of action. This should be done inconjunction with Kanipayyoor Shri Krishnan Namboodripad.The Kadusarkara repairs and repairs to the Moolavigrahas,referred to in the orders of this Court dated 20.03.2017 and18.04.2017, must be undertaken conjointly by the said persons,in consultation with the Tantris, wherever necessary. They shallmutually agree on a Chairman, who may be made responsiblefor the work undertaken.

5. In the background of the above, the amicus curiae submitted,that the inspection and repairs may be permitted to be undertakenconjointly by the said persons. They will be at liberty to appointany artisan/expert, who may have knowledge of Kadusarkarafor the said purpose. The same should be undertaken at theearliest, without compromising with any customs and rituals atthe Temple. We accept the submissions recorded above, andorder accordingly.”

10. Since a request to carry out repairs of the deity was personallymade by this Court, we would expect the experts to carry out theresponsibilities vested in them, so that the work commences beforethe onset of Dakshinayana. If for some reason, one or the other A

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Aexpert is not in a position to undertake the obligations, theAdministrative Committee shall ensure that the same shall becarried out by the remaining experts. It remains the earnest desireof this Court, that the repairs of the deity are commencedexpeditiously, as stated above, and are concluded at the earliest.The suggestions of the experts indicating the manner of carryingBout the repairs will be supported financially by the AdministrativeCommittee. Learned counsel for the rival parties, shall convey tothe experts, the above desire expressed by this Court.

11. Learned counsel for the rival parties are ad-idem that theresponsibility vested with the Overseeing Committee has beenCdischarged, and as such, the Committee may be dissolved. Weorder accordingly. It was however pointed out, that some of theresponsibilities of the Overseeing Committee were delegated tothe Expert Committee. The Expert Committee has alsosubstantially completed its task. However, an inventory of theDKallara B is yet to be prepared, which shall be prepared onlyafter express direction of this Court.

12. Finally, at the joint request of learned counsel for the rivalparties, the Conservation Committee is re-constituted as under:

1. Dr.Velayudhan Nair

E2. Mr.S.Ramamurthy (Archaeologist)

3. Mr.Sharat Sunder R

4. Mr.V.Ratheesan

13. In our motion bench order dated 09.05.2017, we had constitutedFa Selection Committee for the Sreekovil and other allied works byrecording as under:

“6. It was further submitted, that the Selection Committee, forthe Sreekovil and other allied works, which has been mutuallyagreed, should consist of :G

a. Shri Kanipayyoor Shri Krishnan Namboodripad;

b. Dr. M. Velayuthan Nair

c. Shri S. Ramamurthy (Archaeologist)

d. Shri Sharath Sunder R., (Suggested by Shri KKHVenugopal, learned Senior Counsel).

The said committee be permitted to choose the most suitablepersons, at the best competitive prices and subject to ratificationby the Administrative Committee, award the work. Allowedas prayed.”

14. It was submitted, that the aforesaid Selection Committee hasnot finalised the most suitable persons for carrying out theSreekovil, and other allied works. In order to expedite thefinalisation of choosing the most suitable persons, we consider itjust and appropriate to request and appoint Hon’ble Mr.JusticeK.S.P.Radhakrishnan, a retired Judge of this Court, as theChairman of the Selection Committee, contemplated in paragraph6 of the motion bench order dated 09.05.2017 (extracted above).For the responsibility vested in him, Hon’ble Mr.JusticeK.S.P.Radhakrishnan (Retd.) shall be at liberty to fix his ownhonorarium and terms and conditions, which shall be honoured bythe temple.”

38. In these appeals we heard Mr. Krishnan Venugopal, learnedSenior Advocate for the appellant No.1 and Mr. Arvind P. Datar, learnedSenior Advocate for the appellant No.2; Mr. M.K.S. Menon and Mr. J.Sai Deepak, learned Advocates for the Intervenors supporting theappellants; Mr. Jaideep Gupta, learned Senior Advocate for the Stateand Mr. P.B. Suresh, learned Advocate for respondents 3, 4 and 6 inappeal arising out of Special Leave Petition (Civil) No.12361 of 2011.

39. Mr. Krishnan Venugopal, learned Senior Advocate submitted:- “A. The Covenant and the Act are not the source of the Trust butonly recognize pre-existing rights of the Ruler to manage theTemple and regulate that right to the limited extent of providingthat the Ruler as Trustee shall control and supervise theadministration of the Temple through an Executive Officer andan Advisory Committee appointed/selected by him.

B. Factually, there is no dispute that it is the Rulers of Travancorewho founded and endowed the Temple and thereafter havemanaged it without interruption for several centuries.”

Reliance was placed on the expressions in Article VIII(b) of theCovenant and Section 18(2) of TC Act and other material includingexcerpts from a book titled “Travancore” by Emily Gilchrist Hatch[15] :-15 Published by Oxford University Press, 1939

A

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A“C. The only requirement for validly creating a Hindu religiousendowment in favour of an idol or temple is that the settlor mustclearly and unambiguously express his intention in that behalf.

D. The Trustee’s relationship with the Temple is in the nature of ashebaitship which is also a “trust” in its broad and general senseBas signifying a fiduciary relation under which a person havingcontrol over a property is bound to use that property for specifiedobjects.”

It was submitted that the appellant No.1 was not making anyclaim to the ownership of the Temple but was only seeking his right toCmanage the Temple:-“E. Shebaitship devolves upon the heirs of the founder absentany contrary usage or custom.

F. In the present case, the custom and usage by which thetrusteeship of the Temple devolves is the marumakkathayamDlaw.”

And lastly it was submitted :-

“G. The definition of ‘Ruler’ in Article 366 (22) is only for purposesof Constitution and not for any other statute.

EH. The administration of temples by the erstwhile Maharaja ofTravancore was only as a trustee and not by virtue of regal orsovereign power.”

40. Mr. Arvind P. Datar, learned Senior Advocate submitted thatthe judgment under appeal had gone way beyond the pleadings and dealtFwith issues having far reaching consequences in the absence of anypleadings. He stressed upon the expression “present Ruler” appearingin Article IV of the Covenant as against the term “Ruler” occurring atother places in the Covenant and submitted that the term “Ruler” mustmean the Ruler who succeeded to the gaddi as per custom and usage.He further submitted:-G

“Article 362 only required the legislature to take note of thecovenants, agreements and other documents, which were signedwith the Rulers while enacting laws. Accordingly, provisions relatingto exemption from taxation, preservation of method of successionetc. were made to the Income Tax Act, 1922, Income Tax Act,H

1961, Wealth Tax Act, 1957 etc. Significantly, section 5(ii) of theHindu Succession Act, 1956 also preserved the Rules ofSuccession for Rulers and specifically stated that the provisionsof this Act would not apply to the States which were covered bythe covenants or agreement with the Rulers. Other examples areprovisions in the CPC and Cr.P.C. granting certain exemption toRulers…….

… … …

It is significant that despite the abolition of the Privy Purses bythe Constitution (26[th] Amendment) Act, 1971, several of theseexemptions have continued till date. If the concept of Rulers hadbeen totally abolished, then there would not have been exemptionfrom income, property tax, wealth tax etc. to all the 555 Rulerswho signed the covenants or agreements. Such a condition iswholly untenable. [See The Rulers of Indian States (Abolition ofPrivileges) Act, 1972, which continued several benefits to the“Rulers”.]”

He then relied upon the provisions of Article 363 of the Constitutionto submit:- “Therefore, there is a bar under Article 363 to entertain thedispute. This has not been discussed by the High Court. Thesecovenants were signed by the Secretary to the Government ofIndia and indicated that the covenants are in the nature of an Actof a State and the municipal court could not have jurisdiction overany disputes arising out of its terms.

In Sawai Tej Singhji of Alwar v. Union of India[16], the bar ofArticle 363 was held to apply even to an eviction suit of certainbuildings referred to in a letter written in pursuance of the Rajasthancovenant. The suit was filed by the Maharaja. By the same analogy,the writ petition on the question of Rulership would directly becovered by the bar under Article 363.”

41. Mr. M.K.S. Menon, learned Advocate appearing for some ofthe members of the royal family of Travancore as intervenors submittedthat the Constitution, as amended by the Constitution (Twenty SixthAmendment) Act, 1971 extinguished the rights, liabilities and obligations AB

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Apertaining to the Privy Purses alone, and would not impact the mode ofsuccession to the office of a trustee; and that the expression “Ruler ofTravancore” in Section 18 of the TC Act was not to limit the trusteeshipto the “Last Ruler of Travancore”.

42. Mr. J. Sai Deepak, learned Advocate appearing for IntervenorsBincluding Thantri of the Temple who is stated to be the final authority onthe religious practices and traditions of the Temple and “People forDharma” who had intervened and assisted this Court in the Sabrimalacase relied upon documents such as “Kerala Mahatmyam”, Book ofPrincess Gouri Lakshmi Bayi[2], Book titled “History of Travancore fromthe Earliest Times”[17] and the “Travancore State Manual”[18] to stress theCspecial relationship of the Rulers of Travancore as “Padmanabhadasas”with Sri Padmanabhaswamy. He submitted that the ruling family tracesits lineage to Maharaja Aditya on whom Bhagwan Parshurama is believedto have bestowed the duty to take care of the Temple and that the roleplayed by the royal family as descendants of Maharaja Aditya and asD“Padmanabhadasas” being essential and integral to the very foundingand identity of the Temple, would be fully protected by Articles 25(1)and 26(b) of the Constitution. He further submitted that “ParashuramaPadhati” being practised by a handful of temples in the World includingthe Temple, said Padhati having a distinct identity of its own, and thepeople being integrally connected to the Temple would be entitled toEprotection under Article 29(1) of the Constitution. In his submission, ArticleVIII of the Covenant is a stand-alone recognition of the relationshipbetween the Ruler of Travancore and the Temple; that said Article isneither part of the Privy Purse arrangement under Article XIV nor partof the personal rights, privileges, dignities and titles of the Ruler as referred Fto in Article XVII of the Covenant; and therefore any development oroperation of law affecting other provisions of the Covenant would notaffect Article VIII of the Covenant. It was further submitted that theexpression “arising out of” in Article 363 of the Constitution being of thewidest amplitude, disputes having any connection with the Covenant would be beyond the scope of judicial review by virtue of Article 363(1)Gof the Constitution. In support of the submission, reliance was placed on 17 Authored by P. Shungoonny Menon, Dewan Peishcar of Travancore and publishedin 187818 Authored by V. Nagam Aiya, Dewan Peishcar of Travancore and published in 1906H

the decision of this Court in Renusagar Power Co. Ltd. vs. GeneralElectric Company and Ors.[19]

43. In response, Mr. Jaideep Gupta, learned Senior Advocate forthe State submitted that two sets of issues arise for consideration:

A) The true and correct definition of the word “Ruler” in Section18(2) of TC Act.

B) Allegations of mismanagement of the Temple.

Since the reports of the learned Amicus Curiae and of Mr. VinodRai were not dealt with by the learned counsel for the appellants in theiropening submissions, Mr. Gupta deferred submissions regarding thesecond issue, till the appellants were heard on the said Reports. As regardsthe first issue, he submitted:-

i) The expression “Ruler” was repeatedly used in the Covenant inthe context of head of the State and the expression “Ruler” in ArticleVIII(b) must have the same meaning.

ii) The expression “Ruler” in Section 18 of the TC Act must begiven the same meaning as the one contained in Article 366(22) of theConstitution and not as referring to senior members of successivegenerations of the royal family of Travancore.

iii) The material on record including that concerning dedication ofthe State to the deity by the then Ruler did not satisfy the elementsnecessary to constitute an endowment, which would require theappropriation of specific property for a specific religious or charitablepurpose.

For this proposition, reliance was placed on the decisions of thisCourt in Profulla Chorone Requitte v. Satya Chorone Requitte[20 ]andin Angurbala Mullick vs. Debabrata Mullick[21].

iv) As the family of the appellant No.1 did not claim any proprietaryright even of a limited nature, there could not have been any shebaitshipin favour of said family at any point of time and at best it would amountto hereditary trusteeship.

19 AIR (1985) SC 1156 : (1984) 4 SCC 67920 (1979) 3 SCC 40921 AIR 1951 SC 293 : (1951) SCR 1125

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v) Whatever be the nature of relationship between the Ruler ofTravancore and the Temple, right from inception, the office devolvedupon the Ruler in his capacity as a Ruler and not as a private individualbeing the senior member of the ruling family of Travancore.

vi) The relationship underwent a change after the enactment ofBthe TC Act; it became a statutory office and ceased to be in the natureof private shebaitship or hereditary trusteeship of any kind.

vii) In any case, such relationship was with the Ruler of Travancoreas Ruler and with the abolition of the concept of Ruler by the Constitution(Twenty Sixth Amendment) Act, 1971, it ceased to have any effect.

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viii) The bar under Article 363 of the Constitution would not getattracted in the instant case.

With regard to the submissions advanced by the learned counselappearing for the Intervenors, it was submitted that in the absence of aclaim by a properly constituted Religious Denomination, there would beDno question of adjudicating or giving a finding regarding violation of anyrights under Articles 25 and 26 of the Constitution. In his submission,there would be no occasion to enter into the question whether or not theTemple is of a Denominational character; and in any case the relationshipbetween the Ruler of Travancore and the Temple cannot be said to beEan essential or integral part of the Hindu religion in general.

44. Mr. Gupta, leaned Senior Advocate also submitted a chartgiving details about the expenditure incurred by the State in connectionwith the Temple. Leaving out the annual contribution that the State isrequired to extend, the Chart shows expenditure incurred in the sum ofFRs.11,70,11,000/- for the period 2012-2019 as under:- YearGovt. Order No.ItemAmount20122. G.O. (Rt)Fund to D igital Archiving of 2.5 croresNo.240/2012/RD Antiques and artifacts-Keltron Dated 12.01.2012 3. G.O. (Rt) Fund to Expert Com mittee Sree 50 lakhs No.1859/2012/RD Padanabha Swamy Temple Dated 29.03.2012 G4. G.O. (Rt) Fund for Strengthening Kallara-A at 54 lakhs No.6668/2012/RD Sree Padmanabha Swamy Temple – Dated 22.11.2012 Expert Committee 20132. G.O. (Rt)Visit of Prof. Babu, Delhi University 30 No.4426/2013/RD to Padmatheertham pond thousand Dated 02.08.2013 Additiona l Fund to D igita l Archiving 3. G.O. (Rt) of Antiques and artifacts- Keltron 86.39 lakhs No.6542/2013/RD HDated09.12.2013

SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

Thus, Rs.6,02,16,000/- were spent on Digital Archiving of Antiquesand Artifacts; Rs.1,21,65,000/- were spent on strengthening Kallara ‘A’at the Temple; Rs.1,20,00,000/- were allotted to the Expert Committee;Rs.48,00,000/- were allotted to the Audit Committee, while Rs.2,00,00,000/- were spent on renovation of two ponds.

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45. Mr. P.B. Suresh, the learned counsel for respondents 3, 4 and6 in appeal arising out of Special Leave Petition (Civil) No.12361 of2011 submitted:-

i) The Covenants executed by the erstwhile Rulers have noexistence and are not enforceable. Reliance was placed on the decisionBof this Court in Raghunathrao Ganpatrao[14].

ii) Sections 18(2) and 20 of the TC Act, being against the principlesand mandate emanating from Article 363A of the Constitution, are notenforceable. Reliance was placed on the decision of this Court in DeepChand and Others vs. State of U.P. and others[22].

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iii) Consequently, no declaratory relief could be sought in respectof statutory provisions which have ceased to be valid.

iv) Exclusive private management of a public temple would beantithesis to the very character of a public temple. Reliance was placedon the decision of this Court in Bala Shankar Mahashankar Bhattjee Dand others vs. Charity Commissioner, Gujarat State[23].

46. Thereafter, the learned counsel for the parties advancedsubmissions with regard to the Reports of the learned Amicus Curiaeand Mr. Vinod Rai. This exercise involved entering into various factualissues for the first time in this Court. Since no adequate opportunity wasEafforded to various stakeholders involved in the matter, we refrain fromconsidering the issues arising from said Reports.

47. In the end, a Note was given by the learned counsel for theappellants about the composition of Committees to take care of the affairsof the Temple. The Note was essentially in response to the affidavit ofFthe Chief Secretary of the State which was filed on 06.11.2014. TheNote suggested constitution of an Administrative Committee and anAdvisory Committee as under:- “1.The Petitioner, hereinafter referred to as the “Trustee”,isplacing below for the consideration of this Hon’ble Court hisGproposal for the control and supervision of the affairs of SreePadmanabhaswamy Temple (the “Temple”). The Petitioner willfile an appropriate undertaking in terms of the proposal with suchmodifications as may be directed by this Hon’ble Court.

22 (1959) Supp 2 SCR 8H23 (1995) Supp 1 SCC 485

2. The Trustee shall delegate his powers of administration underSection 18(2) of the Travancore-Cochin Hindu ReligiousInstitutions Act, 1950 (the “Act”) to a Committee (the“Administrative Committee”) which shall administer theTemple through an Executive Officer to be appointed by theCommittee.

3. The administrative Committee shall consist of five members:

a) a retired Indian Administrative Service Officer of the rank ofSecretary to Government of Kerala (“the State Government”)to be nominated by the Trustee in consultation with Governmentof Kerala who shall be the Chairperson of the Committee; (b) one member nominated by the trustee;

(c) one member nominated by the Government of Kerala; (d) one member nominated by the Ministry of Culture, Governmentof India; and (e) the Chief Thantri of the temple.

4. All members of the Administrative Committee shall be Hindus,who shall satisfy the requirements under the proviso to Section2(aa) of the Act, as amended, for being appointed as members ofthe Travancore Devaswom Board.

… … …

8. On all policy matters relating to temple administration includingthe matters referred to in paragraph 11 below, the Trustee shallbe guided by the advice of the Sree Padmanabhaswamy TempleCommittee constituted under Section 20 of the Act (the “AdvisoryCommittee”).

9. The Advisory Committee shall consist of:

(a) A retired High Court Judge who shall be nominated by theChief Justice of the Kerala High Court and who shall be theChairperson of the Committee.

(b) One eminent person to be nominated by the Trustee; and

(c) A reputed chartered Accountant to be nominated by theChairperson in consultation with the Trustee.

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AThe provisions in paragraphs 4 and 5 above shall apply equally tothe Advisory Committee.

10. The Advisory Committee shall ensure that regular annual auditof the finances of the Temple is completed by a reputed accounting firm,which shall be changed every three years.

B

11. The Administrative Committee shall not take any decision onthe following matters of policy except after obtaining the approval of theTrustee:

(a) Any expense item exceeding Rs.15 lakhs per month; (b) Any one-time expense of Rs.1 Crore; C

(c) Any major renovation/expansion of the Temple; (d) Any changes in the Standard Operating Procedures; and (e) Any fundamental changes in the character of the Temple thatwould affect the religious sentiments of its devotees.”

D

48. On the other hand, the State also submitted a Note stating:- “It is proposing the following administrative / legal alternativemeasures for the administration of Sree Padmanabha SwamyTemple by forming a Managing Committee on the model of theGuruvayur Devaswom Managing Committee, constituted foradministering the activities of Guruvayur Temple. It is alsosubmitted that Govt. will enable that Committee to administer theSree Padmanabha Swamy Temple by amending Chapter III ofthe TCHRI Act, 1950.

E

The following is extracted from the Preamble of the GuruvayurDevaswom Act, 1978:

F

“Nos.211 and 212 of 1930, for the administration of the said Temple,as modified by the District Court, South Malabar, in O.S. No.1 of1938, the administration, control and management of the templeGand its properties and endowments had been vested in thehereditary trustees, namely, the Zamorin Raja of Calicut and theKaranavan for the time being of the Mallisseri Illom at Guruvayur; And whereas the administration and management of the saidTemple and its properties and endowments had deterioratedand a situation had arisen rendering it expedient to reorganize, H

in the interest of the general public, the scheme of Managementof the affairs of the Devaswom, the Guruvayur DevaswomAct, 1971, was enacted to provide better management of theDevaswom in suppression of the said scheme.”

In the present case, it is submitted that owing to a similar groundof deteriorating condition of the Temple Administration, andtaking into consideration the rights of the devotees and erstwhile“Royal Family” through the Padmanabhadasa, the Stateproposes the following administrative / legal alternative for theadministration of Sree Padmanabha Swamy Temple.

… … …

3. Constitution of a Committee:

1. The Committee constituted shall consist of 8 members andshall be composed as follows:

a) The Padhmanabhadasa

b) The Senior Thantri – ex-officio

c) Not more than 5 members, of whom one shall be a member ofScheduled Caste/ Scheduled Tribe and one shall be a womannominated by the Hindus among the Council of Ministers fromamong persons having interest in the Temple.

d) A representative of the employee of the Devaswom nominatedby the Hindus among the Council of Ministers.

2. A person shall be disqualified for being nominated under clause

(c) of sub-section (1), if:-

(i) He believes the practice of untouchability or does not professthe Hindu Religion or believe in temple worship; or

(ii) he is an employee under the Govt. or Devaswom; or

(iii) he is below 30 years of age; or

(iv) he is subject to any of the disqualifications mentioned in clauses (a), (b) and (c) of sub-section (1) of Section 5.

3. The members of the Committee shall at it first meeting, electone of its members as Chairman.”

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A49. Before we consider the rival submissions, the unequivocalstand taken by the appellants in the grounds of appeal that “the Templeis a public temple and no claim can probably be made by the Petitioneror anyone to owning the Temple or its treasures” and that what wasbeing sought was only the right as a trustee of the Temple to manageand administer it, must be noted at the outset. The said stand wasBexpressly referred to in the Order dated 21.07.2011 by this Court, andsubsequent Orders, and the consideration of the instant case has beenpremised on the said stand.

50. In the backdrop of the facts and circumstances on record, theissues concerning the status and entitlement of the appellant No.1Cincluding the relationship vis-à-vis the Temple are concerned, thecontroversy can be considered under following five segments:- A] Situation obtaining before and upto the date when the Covenantwas entered into in May 1949.

DB] Effect of the Covenant that was entered into in May 1949.

C] Effect of the Constitution of India as it stood before theConstitution (Twenty Sixth Amendment) Act, 1971 and of theprovisions of the TC Act.

D] Effect of the Constitution (Twenty Sixth Amendment) Act,E1971.

E] Effect of the death of the person who had signed the Covenantas the Ruler of Travancore.

A] Situation obtaining before and upto the date when theCovenant was entered into in May 1949F

51. Special Leave Petition (Civil) No.11295 of 2011 from whichthe present appeal arises, asserted:- “1375 to 2011Recorded evidence shows that the SriA.D. (= 550Padmanabhaswamy Temple,GTo 1186 M.E/Thiruvananthapuram temple wasMalayalam Era)administered by the Royal Family ofVenad/Travancore.Recorded evidence shows that the SriPadmanabhaswamy Temple,Thiruvananthapuram temple wasHadministered by the Royal Family ofVenad/Travancore.

Sri Padmanabhaswamy temple(hereinafter referred to as the ‘temple) is a famous temple of Lord Vishnu, located in Thiruvananthapuram, Kerala. The temple is one of the 108[th] holiest abodes (‘D ivya desoms’) of Lord Vishnu. Divya Desams are the holiest abodes of the Lord Mahavishnu that are mentioned in the works of the Tamil Azhvars (saints). The main deity, Sri Padmanabhaswamy, is a form of Vishnu in Anananthasayanam posture (in eternal sleep of yognidra) lying on Sri Anantha, the hoo de d sna ke . The c ity of Thiruvananthapuram is named after the Lord. The word Thiruvananthapuram literally means “The land of Sree Anantha Padmanabhaswamy”. As per the available literature the temple was established several millenniums ago.

The be lie f is that w he n Sri Vilwamangalam Swamiyar (Divakara Muni) had a vision of Sree Padmanabha in the dense woods of Ananthankad, the then king of Vanchinad (Travancore) took initiative to build the temple for the Lord. Thus, it is said, began the relation between the Travancore royal family and the Temple.”

52. With regard to the historical account about the establishmentof the Temple, the written submissions filed on behalf of the appellantNo.1 state:- “18. Although the origins of the temple are shrouded in the mistsof antiquity, it is believed that the then Maharaja of Travancoreestablished the Temple in or around 1375. According to the legendssurrounding the Temples set out in Emily Gilchrist Hatch’s booktitled “Travancore” (Oxford University Press, 1939), there aretwo separate versions of how the Temple came to be built:

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(a) ….[A] five headed cobra put the child in a hole inthe tree and spread his hood to provide shelter from thesun. this child was the incarnation of God Vishnu. ThePulaya couple daily offered milk and kunjee in a halfcoconut shell. The Ruler of Travancore heard of thisand immediately had a temple built at the very place.

B

(b) ”…The second story also tells a child… After severaldays of wandering in the open country, the hungary,distressed Swamiyar heard a child’s cry…. As he startedtowards the place, he heard again the tingle of waist-bells and immediately a huge tree fell to the ground.CThere before him lay God Vishnu on his thousand-headed serprent…. It is said that tree which crashed toearth was carved into the image of Vishnu over whichthe then Raja of Travancore erected a temple.”

In both legends, therefore, it is the Maharaja of TravancoreDwho is said to have founded the Temple.

19. After the Temple was engulfed in a huge fire in 1686, thethen Maharaja of Travancore rebuilt the Temple.”

53. The account given by the High Court in para 4 of the judgmentEunder appeal states that for over 200 years prior to the re-establishmentof the princely state by Marthand Varma, the Temple was under thecontrol of ‘Ettarayogam’ (group of eight and a half) including ‘EttuveettilPillamars’ and then refers to the battle between Marthand Varma andhis loyalists on one hand and the Ettuveettil Pillamars on the other,whereafter Marthand Varma took full control of the State and the Temple.FThe High Court then states, “… it is he (Marthand Varma) whoreconstructed the Temple which was in bad shape after a major firetook place years back and installed a new idol.”

54. Though there may be different accounts and beliefs with regardto the origin and how the Temple was set up, every version accepts thatGthe King of Travancore had a role in the administration of the Temple tobegin with, and that he was the one who re-constructed the Templeafter a major fire that occurred in the year 1686, and installed a new idoland took full control of the Temple. The King of Travancore was thusresponsible for setting up the Temple, in the form that it stands today,and it was the King who installed the new idol, and since then theH

management of the Temple, till the Covenant was signed, had alwaysbeen with the Kings of Travancore.

55. It is also asserted in the grounds in support of the appeal, thatthe royal family of Travancore had been making endowments in favourof the Temple and that Lord Padmanabha is considered as the familydeity by the erstwhile royal family. Some of the practices adverted to inthe Special Leave Petition were as under:- “… …Historically, the petitioner and his predecessors have had avery close association with the Padmanabhaswamy temple, andholds a pre-eminent position in the rituals and practices of thetemple. Some of these are listed below:

i. From the time a female member of the erstwhile RoyalFamily conceives, there are special poojas in the temple atprescribed periods and recitation of personal prayers;

ii. The Padmanabhadasa and the members of the royalfamily escort the idols of Sree Padmanabha, Sree Narasimhaand Sree Krishna during the ‘Arattu’ procession (Holy Bathof the Lord) to the beach and perform various rituals;

iii. Every male child born to the erstwhile Royal Family,after he completes one year, is made a ‘Dasa’ of LordPadmanabha before the sanctum sanctorium;

iv. Every female child, born in the erstwhile Royal Family,is made a ‘Sevini’ of Lord Padmanabha through prescribedrituals;

v. Special ceremonies are conducted at the time when malemembers undergo ‘Upanayanam’ and at the time ofmarriage of female members of the erstwhile Royal Family;

vi. The Padmanabhadasa has many obligations andwhenever he breaches them, he imposes a penalty onhimself by way of compulsory offerings to the Lord;

vii.The Padmanabhadasa has to take the permission of thedeity when he leaves the town as per custom and by offering‘pattu’ and ‘kanikka’ (silk and offerings), he also has tomake amends for his absence depending on the length ofabsence; AB

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viii. The Padmanabhadasa has an ‘ekantha darshan’ withthe Lord, on all days in the morning hours, and at this time,except the Nambi, all others are excluded;

ix. Whenever a member of the royal family passes away,the ‘veerali pattu’ with which the deity is covered is sentform the temple to cover the body before cremation; B

x. In all temple rituals, the Padmanabhadasa is an obligatoryparticipant;

xi. When the deity is taken out in procession, thePadmanabhadasa leads the procession with drawn outsword (udaval) alongwith the heir apparent. ThePadmanabhadasa accompanies the deity for the Pallivetaon both the festivals and does the vetta on the behalf of thedeity.”

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56. The assertions referred to above were not denied or traversed.DAs a matter of fact, the stand in the affidavits filed on behalf of the Statein the Courts below, accepts the position of the erstwhile royal familyvis-à-vis the Temple and Sri Padmanabhaswamy. The affidavits weresworn by responsible officers holding the posts of Joint Secretary andAdditional Secretary in the State Government. It was stated in both theEaffidavits;- “… …There are also many temples owned by private Trusteesand local organization of Hindus too like the Attukal BhagavathyTemple, Pazhavangadi Ganpathy Temple etc. Sree PadmanabhaSwamy Temple is also such a family temple trust owned andFmanaged by the Travancore Palace … …

… …The traditional and customary belief that has been for longrecognized and accepted is that Sree Padmanabha Swamy Templebelongs to “Sree Padmanabha Dasas”, the Royal family head ofTravancore Palace and they command high regard respect andesteem form the public. … …”

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57. Leaving aside the issue of ownership as such status is notclaimed by the appellant No.1 or any of the family members who haveintervened, the fact remains that it is well accepted that the managementof the Temple had all along been in the hands of the ruling family or theTravancore Palace. As stated by the State, that has been the traditional H

and customary belief. Such management has spanned, not for few yearsor decades, but dates back to centuries.

58. The learned Amicus Curiae in his report dated 01.11.2012had stated about the Temple and some of the erstwhile Rulers ofTravancore as under:-

“29. In this context, it may be necessary to mention that the SreePadmanabha Swamy Temple is an integral part of the traditionsof the Royal family of the erstwhile State of Travancore and alsothe people of Kerala (including the residents of the ancient city ofThiruvananthapuram). It is interesting to note that AshwathiThirunal Gouri Lakshmi Bayi (one of the members of the Royalfamily), in her book Sree Padmanabha Swamy Temple publishedby the Bharatiya Vidya Bhavan, interestingly refers to the Prakritversion and the final Sanskrit version of Sree Anandapuram fromSyanandoorapura. The Sree Padmanabha Swamy Temple isconnected to twenty four holy teerthams and is also linked withcertain other temples, many of which are in the State of TamilNadu. It may be noted that even today, Mathilakom records orthe palm leaves scrolls which recorded the ancient history of theTemple and that of the erstwhile State of Travancore are availablein the Temple premises and in the Kerala State Archives….

30. It must also be noted that the idol of Lord Padmanabha ismade using katu sharkara yogam (a complex mixture of 8 naturalingredients) in which 12008 Salagramas were filled in. This idolmade using katu sharkara yogam was consecrated in the year1739 under the aegis of the erstwhile ruler of Travancore, VeeraMarthanda Verma (1706-1758). Salagrama is not a mere stonebut a stone of longstanding tradition and spiritual potency in whichit is believed that Hari or Lord Vishnu resides (hence, yathasalagrame hari). Thus, Eashwara or god manifests Himself insaguna forms in various ways – in the Salagrama as Vishnu, inthe lingam as Shiva and in the chakra as Devi (Mother Goddess).Usually, when 12 salagrama shilas are worshipped, it equals thepotency of a mahakshetram or a great temple. Therefore, thesanctity of Sree Padmanabha Swamy Temple is a thousand fold.

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34. At this juncture, it would be appropriate to mention that theTravancore Royal family is also called the Venadu Raja Vamshawhich is the off-shoot of Chera roya lineage and the Ayi royaldynasty, and has always regarded Lord Padmanabha Swamy astheir tutelory Deity and this is confirmed by many historical recordswhere Lord Padmanabha is addressed as ‘yadavendrakuladaivatam’ or the family Deity of yadavakshatriyas (the presentTravancore royalty); thereby confirming that Sree PadmanabhaSwamy is the ‘kuladaivta’ of the entire family. It may be notedthat devotees other than royalty have worshipped LordPadmanabha Swamy as their ‘ishta daivta’ or God of one’spersonal choice.

35. It was in 1731 A.D. that the first King of the erstwhileTravancore Royal family, Sree Veera Marthanda Varma, wasanointed. He was succeeded by Rama Varma (1758-1798).Moreover, the Royal family consisted of deeply devoted memberswho were dedicated to the Temple and who believed that theirlives centred around Sree Padmanabha Swamy. In 1750 A.D.,the entire State of Travancore was gifted to this Deity by a Deedand the Rulers became servants of the Lord, calling themselvesas Padmanabhadasa. It may also be noted that many of theMaharajas were great composers of shlokas as well as music. In fact, many of the Rulers were protectors of the Vedas and thevedic tradition. Further, the Temple was governed by a council oftrustees called Ettara Yogam headed by the King.

Facts

36. One of the greatest Kings of the Royal family was Sri SwathiThirunal Maharaja Rama Varma (1813-1846) who was a greatpatron of the arts, literature, music and modern science. He wasan extraordinary King who presented an incorruptible system ofgovernance, framed the first code of regulations of Travancore,advanced English education, contributed to a collection of raremanuscripts and undertook a large number of social welfaremeasures. In fact, Sri Swathi Thirunal is regarded as one of thefour great vidwans of Carnatic music – they being MuthuswamyDikshitar, Thyagaraja, Shyamasastry and Swati Thirunal. TheKings including Sri Swathi Thirunal donated their personal wealthto the Temple and, as recorded by Dr. Ventkata Subramanya Iyerin his brilliant book ‘Swathi Thirunal and his music’, during his eventful life, once when one of his courtesans presented a varnamin his honour, the King directed that it should not be used becauseonly Lord Padmanabha Swamy must be lauded with music.”

59. The practices referred to in the earlier paragraph show thatright from the conception of a child upto the death of any member of theerstwhile royal family, special prayers are offered and certain rituals arefollowed. Every male child born in the erstwhile royal family, is made“Dasa” of Sri Padmanabhaswamy while every female child is made“Sevini” through prescribed rituals. Special ceremonies are conductedat the time of ‘Upanayanam’ of a male member and marriage of a femalemember of the erstwhile royal family. Even assuming that these practicesare being or could possibly be followed by other families as well, inaddition to these features, the facts that the Ruler is an obligatoryparticipant in various temple rituals; that he has an ‘Ekantha Darshan’with Sri Padmanabhaswamy on all days in the morning hours where,except the Nambi, nobody else can remain present; that the Ruler has totake special permission whenever he leaves the town; and that wheneverthe deity is taken out in procession, the Ruler leads the procession withthe sword drawn out, along with the heir apparent, establish the specialrelationship that the erstwhile royal family in general and the Ruler inparticular, have always had with Sri Padmanabhaswamy. The ceremonyof Dedication undertaken by the then ruler in 1750 A.D. bears testimonyto such relationship as well as the deep devotion and sense of completesurrender before Sri Padmanabhaswamy. “The Thrippati Danam”, thetranslation of which is set out in paragraph 5, shows that “all the landsand functions together with all rights and dignities, positions of honourand all other possessions” that the royal family was enjoying hithertobefore, were dedicated to Sri Padmanabhaswamy. Even the royal swordwas placed with utmost reverence on the Ottakkal Mandapam leadingto the Sanctum, which the King got back from the high priest. Everyfurther acquisition by the King was always surrendered to SriPadmanabhaswamy. The King and his successors thus ruled andconducted themselves as “Padmanabhadasas” and agents of SriPadmanabhaswamy.

60. Tested on any parameter, such as historical accounts, popularand customary beliefs, certain practices connected with the rituals andaffairs of the Temple that mandatorily require the presence andparticipation of the Ruler, deep involvement of the members of ruling AB

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Afamily and their connection with the Temple and Sri Padmanabhaswamyat various stages of their lives, “The Thrippati Danam” and its significance,and long recognised and accepted fact that the management of theTemple had always been with the Ruler, lead us to conclude that forcenturies, the Temple had been under the exclusive management ofsuccessive Rulers from the ruling family of Travancore and that theBRulers of Travancore, till the signing of the Covenant, were in the capacityas Managers or Shebaits of the Temple.

The expression Shebait is derived from “sewa” which meansservice and Shebait, in literal sense, means one who renders “sewa” tothe idol or a deity. Every Ruler of Travancore would call himselfC“Padmanabhadasa” i.e. one who is engaged in the service of SriPadmanabhaswamy.

61. The Travancore Interim Constitution Act, 1123, which cameinto force on 24.03.1948 i.e. before the Covenant was entered into, isalso a factor that points in the direction of the aforesaid conclusion. InDterms of this Act, all matters connected with Sri Pandaravaka (whichexpression admittedly referred to the Temple and the extensive landsbelonging to Sri Padmanabhaswamy) as well as Devaswoms and HinduReligious Endowments were stated to be under the exclusive controland supervision of the Ruler of Travancore. This Act by itself does notEdetermine the status of the Ruler of Travancore with respect to SriPandaravaka and the Dewaswoms and Hindu Religious Endowments inTravancore, but is indicative of the requisite intent on part of the Rulerof Travancore to retain to himself the matters concerning administrationand management of Sri Pandaravaka and Dewaswoms and HinduReligious Endowments.F

62. Having considered the factual scenario, we must now considerthe legal character and incidents of Shebaitship. On the issue of thelegal position of a Shebait and succession to the office of the Shebait,some of the leading decisions of the Privy Council and of this Court areas follows:-G

a) In Gossamee Sree Greedharreejee vs. RumanlolljeeGossamee[24 ]the Privy Council stated:- “According to Hindu law, when the worship of a thakoor hasbeen founded, the shebaitship is held to be vested in the heirs ofH24 16 M.I.A.137 : (1889) L.R. 16 I.A. 137

the founder, in default of evidence that he has disposed of itotherwise, or there has been some usage, course of dealing, orsome circumstances to show a different mode of devolution.Thisprinciple is illustrated by the decision in the case of Peet Koonwurv. Chutter Dharee Singh[25], and in the present case some of thelearned Judges of the High Court have affirmed it, while none hasexpressed dissent from it. One learned Judge thought that theprinciple does not apply to this case, because Dowjee was not thefounder of the Calcutta worship. But their Lordships adopt theview of the other Judges, and holding that the mortal Dowjee wasthe founder they must also hold that the Plaintiff is by general lawthe shebait of that worship.”

b) The afore-stated principles were expounded further by the PrivyCouncil in Vidya Varuthi Thirtha Swamigal vs. Balusami Ayyar andOrs.[26]

“It is also to be remembered that a “trust,” in the sense in whichthe expression is used in English law, is unknown in the Hindusystem, pure and simple. (J.G. Ghose, “Hindu Law,” page 276.)Hindu piety found expression in gifts to idols and imagesconsecrated and installed in temples, to religious institutions ofevery kind, and for all purposes considered meritorious in the Hindusocial and religious system: to Brahmans, Goswamis, sanyasis,etc. When the gift was to a holy person, it carried with it in termsor by usage and custom certain obligations. Under the Hindu lawthe image of a deity of the Hindu pantheon is, as has been aptlycalled, a “juristic entity,” vested with the capacity of receivinggifts and holding property.Religious institutions, known underdifferent names, are regarded as possessing the same “juristic”capacity, and gifts are made to them eo nomine. In many cases inSouthern India, especially where the diffusion of AryanBrahmanism was essential for bringing the Dravidian peoples underthe religious rule of the Hindu system, colleges and monasteriesunder the names of mutt were founded under spiritual teachers ofrecognized sanctity. These men had and have ample discretion inthe application of the funds of the institution, but always subject to 25 13 Suth. W.R. 396

26 AIR 1922 PC 123 : 48 I.A. 302

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26 AIR 1922 PC 123 : 48 I.A. 302

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Acertain obligations and duties, equally governed by custom andusage. When the gift is directly to an idol or a temple, the seisin tocomplete the gift is necessarily effected by human agency. Calledby whatever name, he is only the manager and custodian of theidol or the institution. In almost every case he is given the right toa part of the usufruct, the mode of enjoyment and the amount ofBthe usufruct depending again on usage and custom. In no casewas the property conveyed to or vested in him, nor is he a “trustee”in the English sense of the term, although in view of the obligationsand duties resting on him, he is answerable as a trustee, in thegeneral sense, for maladministration.”C

c) In Bhaba Tarini Debi vs. Asha Lata Debi[27], while dealingwith the rights of a Shebait, the Privy Council stated:- “The shebait has certainly a right of property in his office and itDmay be correct to say that he has some sort of beneficial interestin the debuttar property, but the idol is the owner of the propertyand the limit set to the shebait’s power of disposition is set, not topreserve the interest of the next shebait, but to maintain andpreserve by proper management the endowment or religiousinstitution.”

EThe following passage from the decision of the High Court (perB.K. Mukherjea, J.[28]) which was under appeal, was quoted by the PrivyCouncil with approval:- “To me it seems that both the elements of office and property, ofduties and personal interest, are mixed up and blended together inFthe conception of shebaitship. One of the elements cannot bedetached from the other. The entire rights remain with the grantorwhen a deity is founded and it is open to him to dispose of theserights in any way he likes. If there is no disposition, shebaitshipremains like any other heritable property in the line of the founderGand each succeeding shebait succeeds to the rights by virtue ofhis being an heir to his immediate predecessor and not to theoriginal grantor. If it is disposed of completely and absolutely infavour of another person, there remains nothing in the grantor 27 AIR 1943 PC 89 : (1943) ILR 2 P.C. 137H28 Later, Chief Justice of India.

except the possibility of a reverter when there is a failure ofextinction of the line of shebaits indicated by him. If, on the otherhand, the founder has parted with his rights only in a partial mannerfor the lifetime of the grantee the residue still remains in him andhis heirs, and on the death of the grantee, the heir of the founderliving at the time is entitled to the shebaitship. If the grantee insuch cases happens to be the sole heir of the founder upon whomthe residuary right devolves at the same time and he becomes theshebait under law as well, then, whether or not we invoke thetechnical doctrine of merger or coalescence of the particular estatewith the residue, his position in my opinion is that of an absoluteshebait whose rights devolve upon his heirs and not upon the heirsof the founder at his death.”

d) In the decision rendered in May 1951 in Angurbala Mullick[21],a Bench of four Judges of this Court had an occasion to consider thelegal position of a Shebait. In the leading Judgment authored by B.K.Mukherjea, J.[29], it was observed:- “The exact legal position of a shebait may not be capable of precisedefinition but its implications are fairly well established. It is settledby the pronouncement of the Judicial Committee in Vidya Varutiv. Balusami26 that the relation of a shebait in regard to debutterproperty is not that of a trustee to trust property under the Englishlaw.In English law the legal estate in the trust property vests inthe trustee who holds it for the benefit of cestui que trust. In aHindu religious endowment on the other hand the entire ownershipof the dedicated property is transferred to the deity or the institutionitself as a juristic person and the shebait or mahant is a meremanager.

But though a shebait is a manager and not a trustee in the technicalsense, it would not be correct to describe the shebaitship as amere office. The shebait has not only duties to discharge inconnection with the endowment, but he has a beneficial interestin the debutter property. As the Judicial Committee observed inthe above case, in almost all such endowments the shebait has ashare in the usufruct of the debutter property which depends uponthe terms of the grant or upon custom or usage. Even where no 29 As the learned Chief Justice then was ABC

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Aemoluments are attached to the office of the shebait, he enjoyssome sort of right or interest in the endowed property whichpartially at least has the character of a proprietary right. Thus, inthe conception of shebaiti both the elements of office and property,of duties and personal interest, are mixed up and blended together;and one of the elements cannot be detached from the other.It isBthe presence of this personal or beneficial interest in the endowedproperty which invests shebaitship with the character of proprietaryrights and attaches to it the legal incidents of property.This waselaborately discussed by a Full Bench of the Calcutta High Courtin Manohar Mukherji v. Bhupendra Nath Mukherji[30 ]and thisCdecision of the Full Bench was approved of by the JudicialCommittee in Ganesh Chunder Dhur v. Lal Behary[31] and againin Bhabatarini v. Ashalata[27]. The effect of the first two decisions,as the Privy Council pointed out in the last case, was to emphasizethe proprietary element in the shebaiti right, and to show that thoughin some respects anomalous, it was an anomaly to be accepted asDhaving been admitted into Hindu law from an early date.“According to Hindu law,” observed Lord Hobhouse in GossameeSree Greedharreejee v. Rumanlolljee Gossamee[24],when theworship of a Thakoor has been founded, the shebaitship is held tobe vested in the heirs of the founder, in default of evidence that heEhas disposed of it otherwise, or there has been some usage, courseof dealing, or some circumstances to show a different mode ofdevolution.

Unless, therefore, the founder has disposed of the shebaitship inany particular manner- and this right of disposition is inherent inFthe founder - or except when usage or custom of a different natureis proved to exist, shebaitship like any other species of heritable”property follows the line of inheritance from the founder.

63. Soon thereafter, the author of the leading Judgment inGAngurbala Mullick[21], delivered Tagore Law Lectures in August 1951which were then published in the form of a comprehensive book underthe caption “The Hindu Law of Religious Endowments and Charitable 30 I.L.R.(1933) 60 Cal. 452H31 (1935-36) 63 I.A. 448

Trusts”. After dealing with endowments created by dedication of watertanks and similar works for general consumption, in the Fourth Editionof the Book[32], it is stated:- “1.54 Administrators or managers of endowments aretrustees in the general sense:-

With regard to all other types of endowment it is necessary forthe purpose of carrying out the intentions of the donor thatsomebody should be entrusted with the management oradministration thereof. As was observed by Mukherjee. J. inManohar vs. Bhupendra[30],in ancient times, except in cases ofproperty dedicated to a brotherhood of ascetics, all endowmentswere administered ordinarily by the founder himself and after hisdeath by his heirs.This was the case not only with regard totemples but also in respect of non-religious charitable institutionslike choultries, Sadabratas etc. It was only in case of public templesthat the practice of appointing shebaits was generally resorted to.But whoever may be the person in whom the duty of administrationis vested, whether it is the shebait or archaka of a temple or theMohant of a religious institution and whether or not such person isthe heir of the original founder, he must be deemed to be in theposition of a trustee with regard to the endowed property. As Ihave said already he may not be a trustee in the sense in whichthe expression is used in English law. To quote the language ofthe Judicial Committee in Vidyavarathi vs. Baluswami[2][6 ]as in nocase is the property conveyed to or vested in him he is not atrustee under the English law’; but it was pointed out by the PrivyCouncil that in view of the obligations resting on him he isanswerable as a trustee in the general sense. I have already pointedout that the word “Trust” in English law involves a highly technicalidea which owes its origin to purely historical circumstances andof which no parallel exists in any other system of law.”

With regard to the nature of rights of a Shebait, the author stated:

“5.1A. Shebait the human ministrant of the deity. – In mylast lecture[33], I have dealt with the general features of a religious 32 Edited by Hon. P.B. Gajendragadkar, former Chief Justice of India 33 Chapter 4 – Religious Trusts in favour of Idols (Debutter)

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endowment which is known as Debutter, and which arises ondedication or gift of property to an idol. It would now be necessaryto enter into details and discuss how a Debutter is managed andadministered. As has been said already, “it is in an ideal sense thatthe dedicated property vests in an idol,” and in the nature of thingsthe possession and management of it must be entrusted to someperson as Shebait or manager.

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“It would seem to follow,” the Judicial Committee observed inProsonna Kumari Debya vs. Golab Chand Baboo,[34] “that theperson so entrusted must, of necessity, be empowered to dowhatever may be required for the service of the idol and for theCbenefit and preservation of its property, at least to as great as themanager of an infant heir. If this were not so, the estate of the idolmight be destroyed or wasted, and its worship discontinued forwant of necessary funds to preserve and maintain them.” Thishuman ministrant of the deity, who is its manager and legalDrepresentative, is known by the name of Shebait in Bengal andNorthern India.He is called the Dharmakarta in the Tamil andTelugu districts, Panchayetdar in places like Tanjore and Urallenin Malabar. He is the person entitled to speak on behalf of thedeity on earth and is endowed with authority to deal with all itstemporal affairs. As regards the temple property, the manager isEin the position of a trustee, but as regards the service of the templeand the duties that appertain to it he is rather in the position of the35holder of an office of dignity. For convenience I will call themanager by the general name of Shebait, though I am aware thata distinction has been made in some cases between a Shebait andFa Dharmakarta[36].

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5.5. Shebaitship is not a mere office, it is property as well.-But though a Shebait is a manager and not a trustee in the technicalsense, it would not be correct to describe shebaitship as a mereGoffice. The Shebait has not only duties to discharge in connectionwith the endowment, he has also a personal interest in it.As the 34 (1875) L.R. 2 I.A. 145

35 Ramanathan Chetti vs. Muruguppa - (1906) L.R. 33 I.A. 139

36 See Srinivasa v. Evalappa, L.R. 49 I.A. 237 : AIR 1922 P.C. 325, 33 approvingHVidyapurma vs. Vidyanidhi (1904) I.L.R. 27 Mad. 435

Judicial Committee pointed out in the above case, in almost allDebutter endowments, the Shebait has a share in the usufruct ofthe Debutter property, which depends either on the terms of thegrant or upon custom or usage. Even when no emoluments areattached to the office of a Shebait, he enjoys some sort of right orinterest in the endowed property which has partially at least thecharacteristics of a proprietary right.You shall see later on[37] thatalthough the Shebait’s power to alienate the Debutter property isvery much limited and can be exercised only when there is ajustifying legal necessity or benefit to the deity, yet he can createderivative tenures in respect of the endowed property, which evenif not supported by legal necessity cannot be impeached so longas he is alive and remains in office. The Shebait therefore has tosome extent the rights of a limited owner. It has now been decidedby a Full Bench of the Calcutta High Court[30] after an elaboratereview of all authorities that shebaitship is property, with regardto the disposition of which the rule in Tagore vs. Tagore[38] isapplicable, and this decision has been approved of by the PrivyCouncil in Ganesh Chandra vs. Lal Behari[31]and again inBhabatarini vs. Ashalata[27]. In Janki Raman vs.Koshalyanandan[39], the founder of an endowment had providedthat the office of shebaitship should be held by three brothers andthat it should devolve on their heirs. One of the brothers havingrelinquished his right in favour of the other two brothers, it washeld that the devolution of the office was governed by the generallaw of succession relating to property, and that a relinquishmentby the holder of an office was not binding upon his heirs and couldnot enure beyond his lifetime.

5.6A. Shebaitship remains in the founder and his heirsunless disposed of. - When a deity is installed, the shebaitshipremains in he founder and his heirs.“According to Hindu law,”thus observed Lord Hobhouse in Gossamee Sree Greedhareejeevs. Ruman Lalljee[24] - and this observation has been reiterated innumerous cases since then – “when the worship of a Thakoorhas been founded, the shebaitship is held to be vested in the heirs 37 Chapter 6 (Administration of Debutter: Rights, Duties and Powers of a Shebait)38 9 B.L.R. 377

39 A.I.R. 1961 Pat. 293

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Aof the founder in default of evidence that he has disposed of itotherwise, or there has been some usage, course of dealing, orsome circumstances to stow a different mode of devolution.”Unless therefore the founder has disposed of the shebaitship inany particular way and except when an usage or custom of adifferent nature is proved to exist, shebaitship like any other speciesBof heritable property follows the line of inheritance from thefounder.

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5.31. Extinction of the life of Shebaits. – When the line ofShebaits laid down by the founder is extinct, or when the Shebaitto whom a power of nomination is given does not exercise thepower, the managership reverts to the founder who endowed theproperty or his heirs[40].

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In case the line of Shebaits is extinct, there is always an ultimateDreversion to the founder or his heirs and strictly speaking, noescheat arises so far as the devolution of Shebaitship is concerned.But cases may theoretically be concerned where the founder alsohas left no heirs; and in such cases the founder’s properties mayescheat to the State together with the endowed property. In veryrare circumstances like these, the right of the State would possiblyEbe the same as those of the founder himself, and it would be forthe State to appoint a Shebait for the Debutter property. It cannotbe said that the State receiving a dedicated property by escheatcan put an end to the trust and treat it as secular property.

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Some observations occur in the judgment of Muthuswami AyyarFand Shephard, JJ. In Mallan v. Purusothoma[41], which wouldseem to suggest that the Government getting the property by rightof escheat can put an end to an arrangement made by the originalowners under which a certain property was kept undivided forbeing used for the worship of a deity. There is, however, no findingin this case that the property was actually dedicated to the deity,Gand from the observations of the High Court it appears that there H

40 Sabitri Thakurani vs. F.A. Savi, I.L.R. 12 Pat. 359; Jagannath v. Ranjit Singh,I.L.R. 25 Cal. 35441 I.L.R. 12 Mad. 287, 291.

was only a personal arrangement between the co-sharers underwhich it was excluded from partition.”

(Underlined by us)

64. In the decision in Angurbala Mullick[21]as well as in the Bookas stated above, reference was made to the Full Bench decision of theCalcutta High Court in Manohar Mukherjee vs. Bhupendra NathMukherjee and Ors.[30], where one of the issues for consideration was:whether founder of a Hindu debutter was competent to lay down rulesto govern the succession to the office of Shebait. Asutosh Mookerjee,J. speaking on behalf of the Bench of five Judges had observed:- “15. The deity is the recipient of the gift only in an ideal sense;the dedicated property belongs to the deity in a similar sense; inreality the property dedicated is in the nature of an ownerlessthing. In ancient times, except in cases of property dedicated to abrotherhood of sanyasis, all endowments ordinarily wereadministered by the founder himself and after him his heirs. Theidea of appointing a shebait is of more modern growth. When aHindu creates an endowment, its management is primarily in himand his heirs, and unless he appoints a shebait, he himself fills thatoffice and in him rests that limited ownership,- notwithstandingthat, on the one hand, he is the donor and, on the other, the recipienton behalf of the deity, the juridical person-which has to beexercised until the property offered to the deity has been suitablydisposed of. … … … This idea of limited ownership is the essenceof the position of the manager or custodian of a dedicated property,by whatever name he may be called. That this idea is the onlybasis on which decisions of the highest authority as regards therights and powers of shebaits may be justified will be seen hereafterwhen some of these decisions will be referred to.

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26. Shebaitship in its true legal conception involves two ideas:The ministrant of the deity and its manager; it is not a bare officebut an office together with certain rights attached to it.A shebait’sposition towards the debutter property is not similar to that inEngland of a trustee towards the trust property; it is only thatcertain duties have to be performed by him which are analogousto those of trustees. … …”

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A65. On 16.03.1954, a Bench of seven Judges of this Court speakingthrough B.K. Mukherjea, J.[29 ]held in The Commissioner, HinduReligious Endowments, Madras vs. Sri Lakshmindra ThirthaSwamiar of Sri Shirur Mutt[42],inter alia, that what had been laid downin series of decisions with regard to the rights of a Shebait would applywith equal propriety to the office of a Mahant. It was stated:-B

“As regards the property rights of a Mathadhipati, it may not bepossible to say in view of the pronouncements of the JudicialCommittee, which have been accepted as good law in this countryever since 1921, that a Mathadhipati holds the Math property as alife tenant or that his position is similar to that of a Hindu widow inCrespect to her husband’s estate or of an English Bishop holding abenefice. He is certainly not a trustee in the strict sense. He maybe, as the Privy Council[26] says, a manager or custodian of theinstitution who has to discharge the duties of a trustee and isanswerable as such; but he is not a mere manager and it wouldDnot be right to describe Mahantship as a mere office. A superiorof a Math has not only duties to discharge in connection with theendowment but he has a personal interest of a beneficial characterwhich is sanctioned by custom and is much larger than that of aShebait in the debutter property. It was held by a Full Bench ofthe Calcutta High Court[30] that Shebaitship itself is property, andEthis decision was approved of by the Judicial Committee in Ganeshv. Lal Behary[31] and again in Bhabatarini v. Ashalata[27]. Theeffect of the first two decisions,as the Privy Council pointed outin the last case, was to emphasise the proprietary element in theShebaiti right and to show that though in some respects an anomaly, D

Fit was an anomaly to be accepted as having been admitted intoHindu law from an early date.This view was adopted in its entiretyby this Court in Angurbala v. Debabrata[21] and what was said inthat case in respect to Shebaiti right could, with equal propriety,be applied to the office of a Mahant. Thus in the conception ofMahantship, as in Shebaitship, both the elements of office andGproperty, of duties and personal interest are blended together andneither can be detached from the other. The personal or beneficialinterest of the Mahant in the endowments attached to an institutionis manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowedproperties; and these and other rights of a similar character investthe office of the Mahant with the character of proprietary rightwhich, though anomalous to some extent, is still a genuine legalright. It is true that the Mahantship is not heritable like ordinaryproperty, but that is because of its peculiar nature and the factthat the office is generally held by an ascetic, whose connectionwith his natural family being completely cut off, the ordinary rulesof succession do not apply.

There is no reason why the word “property”, as used in Article19(1)(f) of the Constitution, should not be given a liberal and wideconnotation and should not be extended to those well recognisedtypes of interest which have the insignia or characteristics ofproprietary right. As said above, the ingredients of both office andproperty, of duties and personal interest are blended together inthe rights of a Mahant and the Mahant has the right to enjoy thisproperty or beneficial interest so long as he is entitled to hold hisoffice. To take away this beneficial interest and leave him merelyto the discharge of his duties would be to destroy his character asa Mahant altogether. It is true that the beneficial interest whichhe enjoys is appurtenant to his duties and as he is in charge of apublic institution, reasonable restrictions can always be placedupon his rights in the interest of the public. But the restrictionswould cease to be reasonable if they are calculated to make himunfit to discharge the duties which he is called upon to discharge.A Mahant’s duty is not simply to manage the temporalities of aMath. He is the head and superior of spiritual fraternity and thepurpose of Math is to encourage and foster spiritual training bymaintenance of a competent line of teachers who could impartreligious instructions to the disciples and followers of the Mathand try to strengthen the doctrines of the particular school or order,of which they profess to be adherents. This purpose cannot beserved if the restrictions are such as would bring the Mathadhipatidown to the level of a servant under a State department. It isfrom this standpoint that the reasonableness of the restrictionsshould be judged.”

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A66. Within few months, in the decision in MahantSital Das vs.Sant Ram and others[43 ]rendered on 08.04.1954, B.K. Mukherjea, J.[29]speaking for a Bench of four Judges stated:- “In the appeal before us the contentions raised by the partiesprimarily centre round the point as to whether after the death ofBKishore Das, the plaintiff or the defendant No.3 acquired the rightsof Mahant in regard to the Thakardwara in dispute. The law iswell settled that succession to Mahantship of a Math or religiousinstitutions is regulated by custom or usage of the particularinstitution, except where a rule of succession is laid down by thefounder himself who created the endowment. As the JudicialCCommittee laid down – Vide Genda Puri v. Chhatar Puri[44], inone of the many cases on this point: “in determining who isentitled to succeed as Mohunt, the only law to be observed isto be found in the custom and practice, which must be provedby testimony, and the claimant must show that he is entitledDaccording to the custom to recover the office and the landand property belonging to it……………… Mere infirmity ofthe title of the defendant, who is in possession, will not helpthe plaintiff:.”

E67. In His Holiness Digya Darshan Rajendra Ram Doss v.Devendra Doss[45], a Bench of three Judges of this Court observed:- “7.In our opinion, the rule of custom should prevail in all casesand if any aberrations have to be corrected such correction musttake us in the direction of re-establishing the rule of custom. ToFthat extent the principle laid down in the case of Annasami Pillaiv. Ramakrishna Mudaliar[46] is a correct principle and has to befollowed. That, however, does not resolve the difficulty in thiscase. Assuming that Chetan Doss was not a validly appointedMahant so that his period of office is to be ignored, the questionGstill arises whether in making a reversion to the customary rule ofsuccession to the office of a Mahant such reversion is to operatefrom the point where Chetandoss’ period ended or from the point 43 AIR 1954 SC 60644 13 Ind App – page 105 (PC)(A)

45 (1973) 1 SCC 14H46 ILR 28 Mad 219

when this had commenced. It is only an accident that in this caseChetandoss has a very brief period of office so that on his deathit was at least possible to find one surviving disciple of the Mahantwho held the office before Chetan Doss succeeded him. In mostcases if there is a break in the customary rule it may not at all bepossible to revert back to the customary succession if one has tostart from the point where the original break had commenced. Insuch cases even if it may be possible to revert to the customarypractice, it may not be possible to go back to the point where thecustomary line of succession had its original break. Thus, in thiscase though it has been possible to trace at least one person whowas a disciple of Narayan Doss after whose death the customarypractice was broken and the office handed over to an allegedinterloper, even this lone survivor of the original line of successionis not a person who is competent to become the Mahant by theimmemorial custom of the Mutt. Therefore, it is not possible at allto re-establish the customary line of succession if one treats theperiod of Chetan Doss’ Mahantship as altogether non-existing. Ifwe have to revert to the custom of the Mutt we cannot do sofrom the point of time when Narayan Doss died and Chetan Dossbecame the Mahant. We have to do so from the point when ChetanDoss died. After all, Chetandoss has been unquestionably theMahant of the Mutt. It is true that on a subsequent re-examinationof the whole matter, doubts have been cast on his title for theoffice but by common acceptance of the Chelas of the Mutt hehad become the Mahant and had remained a Mahant till his death.Ignoring the fact that he was really the Mahant of this Mutt for aspecific period does not help us to re-establish the rule of customprevailing in this Mutt. The only possible way in which the oldcustom may be re-established is by making a fresh start from thepoint of the death of Chetandoss and that can only be done byallowing Devendra Doss to be the Mahant. The High Court hascome to a clear finding that Devendra Doss is a North-IndianBrahmin and is therefore fit to hold the office of a Mahantaccording to the custom of this Mutt. The High Court has alsofound that he was the senior-most disciple of Chetandoss whohad been the reigning Mahant up to the point of time when thedispute regarding succession arose. If Rajendra Ram Doss’ rightto become the Mahant be rejected on the ground that Chetandoss ABC

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Awas perhaps an interloper the whole line of succession will bebroken beyond repair or redemption, for, once it is accepted thatRajendra Ram Doss is not a North-Indian Brahmin there is noother living disciple of Narayan Doss who could restore the originalline of succession. In our view it is not open to us to lay down anew rule of succession or to alter the rule of succession completely.BThe only way we can save the custom is by accepting somethingas fact which has so far been accepted by everybody concernedwith the Mutt as a fact and which cannot any longer be undonewithout demolishing altogether the custom of the Mutt. In thesecircumstances we hold that Devendra Doss is entitled to succeedCChetan Doss as his senior-most disciple on the strength of theimmemorial custom of this Mutt.”

68. In Profulla Chorone Requitte[20], the principles were summedup by this Court as under:-D

“20. Before dealing with these contentions, it will be appropriateto have a clear idea of the concept, the legal character andincidents of shebaitship. Property dedicated to an idol vests in it inan ideal sense only; ex necessitas, the possession and managementhas to be entrusted to some human agent. Such an agent of theEidol is known as shebait in Northern India. The legal character ofa shebait cannot be defined with precision and exactitude. Broadlydescribed, he is the human ministrant and custodian of the idol, itsearthly spokesman, its authorised representative entitled to dealwith all its temporal affairs and to manage its property. As regardsFthe administration of the debutter, his position is analogous to thatof a trustee; yet, he is not precisely in the position of a trustee inthe English sense, because under Hindu Law, property absolutelydedicated to an idol, vests in the idol, and not in the shebait.Althoughthe debutter never vests in the shebait, yet, peculiarly enough,almost in every case, the shebait has a right to a part of theGusufruct, the mode of enjoyment, and the amount of the usufructdepending again on usage and custom, if not devised by the founder.

21. As regards the service of the temple and the duties thatappertain to it, he is rather in the position of the holder of an H

office; but even so, it will not be quite correct to describeshebaitship as a mere office. “Office and property are both blendedin the conception of shebaitship”. Apart from the obligations andduties resting on him in connection with the endowment, theshebait has a personal interest in the endowed property. He has,to some extent, the rights of a limited owner.”

22. Shebaitship being property, it devolves like any other speciesof heritable property. It follows that, where the founder does notdispose of the shebaiti rights in the endowment created by him,the shebaitship devolves on the heirs of the founder according toHindu Law, if no usage or custom of a different nature is shownto exist. [Gossamee Shree Greedharreejee v. Ramanlaljee.[24]]

23. Then, there is a distinction between a public and privatedebutter. In a public debutter or endowment, the dedication is forthe use or benefit of the public. But in a private endowment, whenproperty is set apart for the worship of a family idol, the public arenot interested. The present case is one of a private debutter. Thedistinction is important, because the results logically followingtherefrom have been given effect to by courts, differently.

24. According to English law, the beneficiaries in a private trust,if sui juris and of one mind, have the power or authority to put anend to the trust or use the trust fund for any purpose and divert itfrom its original object. Whether this principle applies to a privateendowment or debutter created under Hindu Law, is a questionon which authorities are not agreed. In Doorganath Roy v. RamChunder Sen[47] it was observed that while the dedication is to apublic temple, the family of the founder could not put an end to it,but “in the case of a family idol, the consensus of the whole familymight give the (debutter) estate another direction” and turn it intoa secular estate.

25. Subsequently, in Pramatha Nath Mullick v. PradhyumnaKumar Mullick[48] the Judicial Committee clarified that the propertycannot be taken away from the idol and diverted to other purposeswithout the consent of the idol through its earthly agents who, asguardians of the deity, cannot in law consent to anything whichmay amount to an extinction of the deity itself.”

47 LR 4 IA 52 : ILR 2 Cal 233

48 52 IA 245 : AIR 1925 PC 139

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69. Recently, the Constitution Bench of this Court in M. Siddiq(dead) through LRs vs. Mahant Suresh Das and others (RamJanmabhumi Temple Case)[49 ]inter alia, dealt with the role and positionof a shebait. After considering the decisions on the point, it was stated:- “425. Courts recognise a Hindu idol as the material embodimentof a testator’s pious purpose. Juristic personality can also beconferred on a Swayambhu deity which is a self-manifestation innature. An idol is a juristic person in which title to the endowedproperty vests. The idol does not enjoy possession of the propertyin the same manner as do natural persons. The property vests inthe idol only in an ideal sense. The idol must act through somehuman agency which will manage its properties, arrange for theperformance of ceremonies associated with worship and take stepsto protect the endowment, inter alia by bringing proceedings onbehalf of the idol. The shebait is the human person who dischargesthis role.

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429. The recognition of a person or a group of persons as shebaitsis a substantive conferment of the right to manage the affairs ofthe deity. A necessary adjunct of the status of a shebait, is theright to brings actions on the behalf of an idol and bind it and itsproperties to the outcomes. The purpose for which legal personalityEis conferred upon an idol as the material embodiment of the piouspurpose is protected and realised through the actions of the humanagent, that is, the shebait. The shebait is entrusted with the powerand the duty to carry out the purpose of the donor in respect ofthe idol and its properties. In the vast majority of cases, a shebaitFis appointed in accordance with the terms of a deed of dedicationby which property is endowed to an idol. It is for the protection ofthis property that the law recognises either the donor or a personnamed in the deed of endowment as the shebait. In the absenceof an expressly appointed or identified shebait, the law has ensuredthe protection of the properties of the idol by the recognition of aGde facto shebait.Where a person is in complete and continuousmanagement of the deity’s affairs coupled with long, exclusiveand uninterrupted possession of the appurtenant property, such aperson may be recognised as a shebait despite the absence of a legal title to the rights of a shebait. This will be adverted to in thecourse of the judgment.

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434. In addition to the duties that must be discharged in relationto the debutter property, a shebait may have an interest in theusufruct of the debutter property. In this view, shebaitship is notan office simpliciter, but is also property for the purposes ofdevolution[50]. This view has been affirmed by this Court inAngurbala Mullick v. Debabrata Mullick[21]. The controversyin that case was whether the appellant, as the widow of the shebait,was entitled to act as the shebait of the idol instead of the minorson of the shebait born from his first marriage who was therespondent. It was contended that the office of shebaitship woulddevolve in accordance with the Hindu Women’s Right to PropertyAct, 1937. B.K. Mukherjea, J. speaking for a four-Judge Benchof this Court accepted this contention and held: (AngurbalaMullick case[21] (AIR p. 296, para 11).

“11. … But though a shebait is a manager and not a trustee inthe technical sense, it would not be correct to describe theshebaitship as a mere office. The shebait has not only duties todischarge in connection with the endowment, but he has abeneficial interest in the debutter property. As the JudicialCommittee observed in the above case, in almost all suchendowments the shebait has a share in the usufruct of thedebutter property which depends upon the terms of the grantor upon custom or usage. Even where no emoluments areattached to the office of the shebait, he enjoys some sort ofright or interest in the endowed property which partially atleast has the character of a proprietary right. Thus, in theconception of shebaiti both the elements of office and property,of duties and personal interest, are mixed up and blendedtogether; and one of the elements cannot be detached fromthe other. It is the presence of this personal or beneficial interestin the endowed property which invests shebaitship with the 50 Approved by the Privy Council in Ganesh Chunder Dhur v. Lal Behary Dhur, 1936SCC OnLline PC 53 : (1935-36) 63 IA 448 and Bhabatarini Debi v. Ashalata Debi, 1943SCC OnLine PC 1 : (1942-43) 70 IA 57

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Acharacter of proprietary rights and attaches to it the legalincidents of property.”

The Court held that a shebait has a beneficial interest in theusufruct of the debutter property. This beneficial interest is inthe form of a proprietary right. Though the role of the shebaitBis premised on the performance of certain duties for the idoland the benefits are appurtenant, neither can be separated fromthe other. Thus, office and property are both blended inshebaitship, the personal interest of a shebait beingappurtenant to their duties.[51]"

C70. Reliance was however placed by Mr. Gupta, learned SeniorAdvocate on the decision of this Court in Tilkayat Shri GovindlaljiMaharaj v. The State of Rajasthan and others[52] to submit that mereright to manage the debutter property when no emoluments were beingdrawn by the Manager was not found to be protected under Articles19(1)(f) and 31(2) of the Constitution of India by a Bench of five JudgesDof this Court. This Court, speaking through Gajendragadkar, J. (as thelearned Chief Justice then was) had observed:- “The temple of Shrinathji at Nathdwara holds a very high placeamong the in Hindu temples in this country and is looked uponwith great reverence by the Hindus in general and the VaishnavEfollowers of Vallabha in particular. As in the case of other ancientrevered Hindu temples, so in the case of the Shrinathji temple atNathdwara, mythology has woven an attractive web about thegenesis of its construction at Nathdwara. Part of it may be historyand part may be fiction, but the story is handed down fromFgeneration to generation of devotees and is believed by all of themto be true.

… … …

The question as to whether a Hindu temple is private or publichas often been considered by judicial decision. A temple belongingGto a family which is a private temple is not unknown to Hindu law.In the case of a private temple it is also not unlikely that the religiousreputation of the founder may be of such a high order that the 51 Affirmed in Badri Nath v. Punna, (1979) 3 SCC 71: Profulla Chorone Requitte v.Satya Chorone Requitte, (1979) 3 SCC 409H52 (1964) 1 SCR 561

private temple founded by him may attract devotees in largenumbers and the mere fact that a large number of devotees areallowed to worship in the temple would not necessarily make theprivate temple a public temple. On the other hand, a public templecan be built by subscriptions raised by the public and a deity installedto enable all the members of the public to offer worship. In sucha case, the temple would clearly be a public temple. Whereevidence in regard to the foundation of the temple is not clearlyavailable, sometimes, judicial decisions rely on certain other factswhich are treated as relevant. Is the temple built in such an imposingmanner that it may prima facie appear to be a public temple?The appearance of the temple of course cannot be a decisivefactor; at best it may be a relevant factor. Are the members ofthe public entitled to an entry in the temple? Are they entitled totake part in offering service and taking Darshan in the temple?Are the members of the public entitled to take part in the festivalsand ceremonies arranged in the temple? Are their offeringsaccepted as a matter of right? The participation of the membersof the public in the Darshan in the temple and in the daily Acts ofworship or in the celebration of festival occasions may be a veryimportant factor to consider in determining the character of thetemple….

…..If the temple is a public temple, under Hindu Law the idol ofShrinathji is a juridical person and so, the ownership of the templeand all its endowments including offerings made before the idolconstitute the property of the idol….

… … …

That takes us to the question as the nature and extent of theTilkayat’s rights in regard to the temple property. It is clear thatthe Tilkayat never used any income from the property of the templefor his personal needs or private purpose. It is true that the learnedAttorney General suggested that this consistent course of conductspreading over a large number of years was the result of what hedescribed as self-abnegation on the part of the tilkayats fromgeneration to generationand from Tilkayat’s point of view, it canbe so regarded because the Tilkayat thought and claimed that thetemple and his properties together constituted his private property.But once we reach the conclusion that the temple is a public temple AB

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and the properties belonging to it are the properties of the templeover which the Tilkayat has no title or right, we will have to takeinto account the fact that during the long course of themanagement of this temple, the Tilkayat has never claimed anyproprietary interest to any part of the usufrcut of the properties ofthe temple for his private personal needs, and so, that proprietaryinterest of which Mr. Ameer Ali spoke in dealing with the positionof the Mahant and the Shebait and to which this Court referred inthe case of commissioner, Hindu Religious endowments,Madras[42]is lacking in the present case. What the Tilkayat canclaim is merely the right to manage the property, to create lease inrespect of the properties in a reasonable manner and the theoreticalright to alienate the property for the purpose of the temple; and beit noted that these rights could be exercised by the Tilkayat underthe absolute and strict supervision of the Darbar of Udaipur.Now,the right to manage the property belonging to the temple, or theright to create a lease of the property on behalf of the temple, orthe right to alienate the property for the purpose of the templeunder the supervision of the Darbar cannot, in our opinion, beequated with the totality of the powers generally possessed bythe Mahant or even the Shebait,and so, we are not prepared tohold that having regard to the character and extent of the rightswhich can be legitimately claimed by the Tilkayat even on thebasis that he was a Mahant governed by the terms of the Firman,amount to a right to property under Article 19(1)(f) or constituteproperty under Article 31(2).

Besides, we may add that even if it was held that these rightsconstituted a right to hold property their regulation by the relevantprovisions of the Act would undoubtedly be protected by Art.19(5). The temple is a public temple and what the legislature haspurported to do is to regulate the administration of the propertiesof the temple by the Board of which the Tilkayat is and has to bea member. Having regard to the large estate owned by the Tilkayatand having regard to the very wide extent of the offerings madeto the temple by millions of devotees from day to day; the legislaturewas clearly justified in providing for proper administration of theproperties of the temple. The restrictions imposed by the Act must, therefore, be treated as reasonable and in the interests of thegeneral public.”

71. In the aforesaid case, this Court was called upon to considerthe matter in the context of challenge to the Nathadwara Temple Act,1959 (Rajasthan Act 13 of 1959), inter alia, on the grounds that saidAct violated the rights guaranteed under Articles 19(1)(f), 25(1), 26 (b)& (c) and 31(2) of the Constitution. The Act under challenge, enactedby the State, had sought to change the management which was earlier inthe hands of the Tilkayat. On facts, it was noticed that the petitionertherein was appointed as Tilkayat (Manager of the Temple) under aFirman issued by the Rana of Udaipur on December 31, 1934 whichprovided that the Udaipur Darbar had absolute right to supervise thatthe property dedicated to the shrine was used for legitimate purpose andto take any measures for the management of the shrine. It was held bythis Court that said Firman was law by which the affairs of said templeand succession to the office of the Tilkayat were governed after itsissue. This Court thereafter held:-

“Having regard to the unambiguous and emphatic words used inclause 1 of the Firman and having regard to other drastic provisionscontained in its remaining clauses, we are inclined to think thatthis Firman made the Tilkayat for the time being a Custodian,Manager and Trustee, and nothing more. As a Custodian orManager, he had the right to manage the properties of the temple,subject, of course, to the overall supervision of the Darbar, theright of the Darbar in that behalf being absolute. He was also aTrustee of the said property and the word “trustee” in the contextmust mean trustee in the technical legal sense. In other words, itis not open to the Tilkayat to claim that he has rights of a Mahantor a Shebait;his rights are now defined and he cannot claim anyhigher rights after the Firman was issued.”

In the backdrop of the finding that the Tilkayat could not claimrights of a Mahant or a Shebait, the challenge on the grounds that saidAct violated the rights under the Constitution was negated.

On the other hand, after considering the relevant decisions on thepoint, in Angurbala Mullick[21], this Court had very clearly observed,that even where no emoluments are attached to the office of the shebait, A

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Ahe enjoys some sort of right or interest in the debutter property whichpartially has the character of a proprietary right. In the decision of aBench of seven Judges in Shirur Mutt Case[42 ]the decision in AngurbalaMullick[21]was referred to with approval. In the recent decision of theConstitution Bench in M. Siddiq (Ram Janmabhumi Temple Case)[49],the concerned portion from Angurbala Mullick[21] was also quoted inBparagraph 434.

In the premises, in our view, mere factum that no emoluments areattached to the office of the Shebait would not make any difference tothe character of the right and interest of the Shebait. Though thisconclusion is based on the decisions referred to above, reference mayCadditionally be made to Para 5.5 of the Book titled “The Hindu Law ofReligious Endowments and Charitable Trusts”, 4[th] Edition edited byHon. P.B. Gajendragadkar, former Chief Justice of India, which pointsin the same direction.

72. The principles that emerge from the long line of decisionsDreferred to in the preceding paragraphs can thus be summed up:-

(i) According to Hindu law, when the worship of a thakoor hasbeen founded, the Shebaitship is held to be vested in the heirs ofthe founder, in default of evidence that he has disposed of itotherwise, or there has been some usage, course of dealing, orEsome circumstances to show a different mode of devolution.(Gossamee Sree Greedharreejee vs. RumanlolljeeGossamee[24])

(ii) Unless the founder has disposed of the Shebaitship in anyparticular manner - and this right of disposition is inherent in theFfounder - or except when usage or custom of a different nature isproved to exist, Shebaitship like any other species of heritableproperty follows the line of inheritance from the founder.(Angurbala Mullick vs. Debabrata Mullick[21])

(iii) The legal character of a Shebait cannot be defined withGprecision and exactitude. Broadly described, he is the humanministrant and custodian of the idol, its earthly spokesman, itsauthorised representative entitled to deal with all its temporalaffairs and to manage its property. As regards the administrationof the debutter, his position is analogous to that of a trustee; yet,he is not precisely in the position of a trustee in the English sense,H

because under Hindu Law, property absolutely dedicated to anidol, vests in the idol, and not in the shebait. (Profulla ChoroneRequitte v. Satya Chorone Requitte[20])

(iv) Shebaitship in its true legal conception involves two ideas:The ministrant of the deity and its manager; it is not a bare officebut an office together with certain rights attached to it. (MonoharMukherjee vs. Bhupendra Nath Mukherjee and Ors.[30])

(v) The effect of the decisions in Ganesh vs. Lal Behary[31] andBhaba Tarini Debi vs. Asha Lata Debi[27] as the Privy Councilpointed out in the latter case, was to emphasise the proprietaryelement in the Shebaiti right and to show that though in somerespects an anomaly, it was an anomaly to be accepted as havingbeen admitted into Hindu law from an early date. (TheCommissioner, Hindu Religious Endowments, Madras vs. SriLakshmindra Thirtha Swamiar of Sri Shirur Mutt[42])

(vi) It is settled by the pronouncement of the Judicial Committeein Vidya Varuti v. Balusami[26 ]that the relation of a Shebait inregard to debutter property is not that of a trustee to trust propertyunder the English law. (Angurbala Mullick vs. DebabrataMullick[21])

(vii) In a Hindu religious endowment the entire ownership of thededicated property is transferred to the deity or the institutionitself as a juristic person and the Shebait or Mahant is a meremanager. (Angurbala Mullick vs. Debabrata Mullick[21])

(viii) In the conception of Mahantship, as in Shebaitship, both theelements of office and property, of duties and personal interestare blended together and neither can be detached from the other.The personal or beneficial interest of the Mahant in theendowments attached to an institution is manifested in his largepowers of disposal and administration and his right to createderivative tenures in respect to endowed properties; and theseand other rights of a similar character invest the office of theMahant with the character of proprietary right which, thoughanomalous to some extent, is still a genuine legal right. (TheCommissioner, Hindu Religious Endowments, Madras vs. SriLakshmindra Thirtha Swamiar of Sri Shirur Mutt[42])

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A(ix) Even where no emoluments are attached to the office of theShebait, he enjoys some sort of right or interest in the endowedproperty which partially at least has the character of a proprietaryright. Thus, in the conception of Shebait both the elements ofoffice and property, of duties and personal interest, are mixed upand blended together; and one of the elements cannot be detachedBfrom the other. It is the presence of this personal or beneficialinterest in the endowed property which invests Shebaitship withthe character of proprietary rights and attaches to it the legalincidents of property. (Angurbala Mullick vs. DebabrataMullick[21])

C

(x) Succession to Mahantship of a Math or religious institutions isregulated by custom or usage of the particular institution, exceptwhere a rule of succession is laid down by the founder himselfwho created the endowment. (Sital Das vs. Sant Ram andothers[43])

D(xi) The rule of custom should prevail in all cases and if anyaberrations have to be corrected such correction must take us inthe direction of re-establishing the rule of custom. (His HolinessDigya Darshan Rajendra Ram Doss v. Devendra Doss[45])

(xii) It is not open to the Court to lay down a new rule of successionEor to alter the rule of succession completely. (His Holiness DigyaDarshan Rajendra Ram Doss v. Devendra Doss[45])

(xiii) In the absence of an expressly appointed or identified Shebait,the law has ensured the protection of the properties of the idol bythe recognition of a de facto Shebait. (M. Siddiq through LRsFvs. Mahant Suresh Das and others (Ram Janmabhumi TempleCase)[49]

73. As laid down by this Court, when the idol is installed and thetemple is constructed or an endowment is founded, the shebaitship isvested in the founder and unless the founder himself has disposed of theGshebaitship in a particular manner or there is some usage or custom orcircumstances showing a different mode of devolution, the shebaitshiplike any other species of heritable property follows the line of inheritancefrom the founder; and it is not open to the Court to lay down a new ruleof succession or alter the rule of succession. It has also been laid downthat the shebaitship has the elements of office and property, of dutiesH

and personal interest blended together and they invest the office of theshebait with the character of proprietary right. It has further been laiddown that the shebait is the custodian of the idol, its earthly spokesmanand the human ministrant; is entitled to deal with the temporal affairsand to manage the property of the idol; and even where no emolumentsare attached to the office of the shebait, he has the right or interest in theendowed property which has the characteristics of a proprietary right.

If the instant case is considered on the touchstone of these settledprinciples, it is clear that after the major fire that occurred in the year1686, the Temple was reconstructed and a new idol was installed by theKing of Travancore Shri Marthand Varma and since then right upto theday the Covenant was signed, the management of the Temple had alwaysbeen with the Kings of Travancore. The shebaitship or the managershipof the Temple passed on to the succeeding Kings, coming from the royalfamily of Travancore. This chain was unbroken till the then Ruler ofTravancore signed the Covenant in May 1949.

It may be noted here that on 10.08.1947 a proclamation was issuedby the Ruler declaring that in matters of succession to the Rulership andto the throne and for all other purposes, the royal family was governedby the Marumakkathayam law, as modified by the custom and usageof the royal family. In a matter raising issues of succession to certainproperties of the Ruler of Travancore, this Court in RevathinnalBalagopala Varma[13 ]had found that the devolution in the royal familywas from Ruler to Ruler. The shebaitship of the Temple had also passedfrom Ruler to Ruler consistent with the principles of succession otherwiseapplicable to the royal family.

74. We must thus conclude that as on the day when the Covenantwas entered into by the Ruler of the Covenanting State of Travancore,apart from other incidents which normally follow the rulership, he washolding the office of Shebait of the Temple and represented a continuousand unbroken line of successive Shebaits traced from the original founder;and being a Shebait of the Temple, he was having all the rights andinterest as laid down by decisions referred to hereinabove.

75. The questions still remain whether the office of Shebaitship ofthe Temple was part of the duties of the Ruler purely in his capacity asa Ruler, and said office was an incident of his rulership, or such officewas totally unconnected to and independent of the rulership. These AB

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B] Effect of the Covenant that was entered into in May1949

76. The Covenant, relevant parts of which are quoted in paragraphB11 hereinabove, was entered into by the Maharajas of Travancore andCochin for the formation of the United State of Travancore and Cochinand for purposes set out therein.

A) In terms of Article III, as from the appointed day, all rights,authority and jurisdiction belonging to “the Ruler” of either of theCCovenanting States which appertained or were incidental to theGovernment of the respective States, vested in the United State. Similarly,all duties and obligations of “the Ruler” of either of the CovenantingStates pertaining or incidental to the Government of that State devolvedon the United State which would now be discharged by the United State.DThus, all functions of the Rulers of either of the Covenanting Statesconcerning or related to the Government of that State stood vested in ordevolved on the United State.

B) In terms of Article IV “the present Ruler” of Travancore wouldbe Rajpramukh for the United State and would hold such office “duringEhis lifetime”. In terms of Article VI, the executive authority of the UnitedState would be exercised by the Rajpramukh subject to certain stipulationsin said Article; as per Article VII, the Rajpramukh would be guided bythe aid and advice of the Council of Ministers; while in terms of ArticleX, the Legislature for the United State would consist of the RajpramukhFand the Legislative Assembly. Article IX then obliged the Rajpramukh toexecute, on behalf of the United State, an Instrument of Accession inaccordance with the provisions of Section 6 of the Government of IndiaAct, 1935. In terms of Article XXI, the Rulers of Travancore and Cochinwould, however, continue to have and exercise their “present powers”of suspension, remission or commutation of death sentences.G

Thus, on the appointed day or the Covenant becoming effective,a new role or capacity, that of Rajpramukh of the United State, wasassumed by the then Ruler of Travancore. No such role was contemplatedfor the then Ruler of Cochin. Their earlier capacities as the Rulers orHeads of the respective Covenanting States thus stood terminated, saveHand except what was stated in Article XXI, where they could still exercise their “present powers” of suspension, remission or commutation of deathsentences. Though, as Rajpramukh, the then Ruler of Travancore wouldhave executive authority over the United State which would includeareas of the erstwhile Cochin State, his powers, in terms of Article XXI,were confined to the areas of the erstwhile Travancore State, while thethen Ruler of Cochin, who was not given any function in the UnitedState, would continue to have and exercise “present powers” underArticle XXI in the areas of the erstwhile Cochin State.

C) Article XIV entitled the Ruler of each Covenanting State toreceive Privy Purses from the revenue of the United State. As regardsthe Ruler of the Covenanting State of Travancore, the entitlement wasrestricted to “the present Ruler”, and not to his successors. In terms ofArticle XV, the Ruler of each Covenanting State would be entitled to thefull ownership, use and enjoyment of all private properties. As per ArticleXVI, the Ruler of each Covenanting State, as also the members of hisfamily, would be entitled to all personal privileges, dignities and titlesenjoyed by them, immediately before 15.08.1947. Article XVII assuredthat succession to the Gaddi of each Covenanting State and to the personalrights, privileges, dignities and titles of the Ruler would be in terms oflaw and custom.

Apart from Article IV, the expression “the present Ruler” findsmention in Article XIV. Articles XIV, XV and XVI conferred certainother entitlements in favour of the Rulers of the Covenanting States andin some cases in favour of the members of family. The succession to theGaddi and other incidents stipulated in Article XVII, would be governedin accordance with law and custom.

D) Article VIII is of importance and significance for the presentpurposes. In terms of Sub-Article ‘a’, the obligation of the CovenantingState of Travancore to contribute from its general revenue a sum ofRs.50 lakhs every year to the Dewaswom Board, and a sum of Rs.1lakh every year to Shri Pandaravaga would, after the Covenant, be theobligation of the United State. In terms of Sub-Article ‘b’, theadministration of the Temple, Sri Pandaravaga properties and allother properties and funds of the Temple now vested in trust in theRuler of the Covenanting State of Travancore and the sum of Rs.1lakh transferred in terms of Sub-Article ‘a’ and Rs.5 lakhs contributedevery year towards the expenditure of the Temple would be conductedsubject to the control and supervision of the Ruler of Travancore A

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Aby an Executive Officer appointed by him. In terms of Sub-Article ‘c’,the administration of the incorporated and unincorporated Devaswomsand of Hindu Religious Institutions and Endowments and all theirproperties and funds which were under the management of the Ruler ofthe Covenanting State of Travancore would stand transferred and vestedin the Travancore Dewaswom Board. It further dealt with manner ofBapportionment of the contribution of Rs.50 lakhs as stipulated in Sub-Article ‘a’. In terms of Sub-Article ‘d’, the administration of theincorporated and unincorporated Dewaswoms and of Hindu ReligiousInstitutions which were under the management of the Ruler of theCovenanting State of Cochin would vest in the Cochin Dewaswom Board.CHowever, “the Ruler of Cochin” would continue to exercise regulationand control of all rituals and ceremonies in respect of two templesmentioned in the proviso. Sub Articles ‘e’ and ‘f’ thereafter dealt withcompositions of the respective Dewaswom Boards.

77. Sub-Article ‘b’ of Article VIII used the expression “now vestedDin trust in the Ruler of the Covenanting State of Travancore” andthus acknowledged the factum that the administration in respect of theTemple, Sri Pandaravaga properties and all other properties and fundsof the Temple was already vested in the Ruler of Covenanting State ofTravancore. Sub-Article ‘b’ further contemplated that with effect fromthe appointed day, the administration of the Temple, Sri PandaravagaEproperties and all other properties and funds of the Temple would besubject to the control and supervision of the “Ruler of Travancore”.This Sub-Article was the centre of debate and fulcrum of submissionsby the learned counsel appearing for various parties.

On one hand, the submissions on behalf of the appellants and theFIntervenors supporting them, stressed the expression “now vested intrust” along with the other material on record to emphasize theacknowledged status of “the Ruler” as Shebait of the Temple as on theday the Covenant was entered into. They also relied upon the latter partof the Sub-Article to submit that such status remained unaffected andGwas certainly intended to be continued.

On the other hand, the submissions on behalf of the State andprivate respondents sought to emphasize that the continuation of thestatus was in favour of “the Ruler” in his capacity as “the Ruler”.

78. According to the Covenant, insofar as the transfer of sovereignHpower and all incidental aspects connected therewith were concerned,

the Ruler of the Covenanting State of Travancore was involved at twostages. Under the first stage, the transfer was contemplated from him inhis capacity as the Head of the Covenanting State of Travancore infavour of the United State and under the second stage as Rajpramukhof the United State he was obliged to execute an Instrument of Accessionin terms of Article IX. On and with effect from the appointed day interms of the Covenant, his role as the Head of the State of Travancorecame to an end and he became the Rajpramukh of the United State, inwhom certain powers and rights got vested by virtue of Articles VI, VIIand X. Theoretically, as Rajpramukh, he could as well be vested withpowers of suspension, remission or commutation of death sentences inrespect of the entire area of the United State but the intent was to retainsuch powers in the erstwhile Ruler of Cochin State, who had no role inthe new dispensation with respect to the United State and for this reason,Article XXI used the expression “the Rulers of Travancore and Cochin”.The fact that this was a departure and as an exception to the generalmechanism is evident from the expression “Notwithstanding anythingcontained in the preceding provisions of this Covenant”. Therefore,despite generality of the earlier Articles of the Covenant, only with respectto matters specified in Article XXI, “the Ruler of Travancore” continuedto have the powers which he was enjoying as the Head of the State ofTravancore before the Covenant came into effect. Thus, wherever theCovenant wanted him to continue to exercise certain powers which asHead of the State of Travancore had resided or vested in him, theCovenant made an express exception and stipulated so.

79. What then would be the import of the expression “the Rulerof Travancore” in the latter part of Sub-Article ‘b’ of Article VIII is thequestion that needs to be addressed.

A) As discussed above, the only place in the Covenant where theperson who signed as the Ruler of the Covenanting State would continueto enjoy his erstwhile powers as the Head of that Covenanting State,was Article XXI. The references as “the Ruler of the Covenanting State”and as the Ruler of Travancore or as “the Ruler of Cochin” in rest of theArticles, were only by way of reference to the person concerned, andnot by way of reference to or because of his official capacity as theRuler. This gets fortified by proviso to Sub-Article ‘d’ of Article VIII, interms of which “the Ruler of Cochin” would continue to exerciseregulation and control with respect to rituals and ceremonies in certain AB

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Atemples. Upon the Covenant coming into effect, he had lost his capacityas the Head of the erstwhile State of Cochin. Thus, the retention of thepowers under said proviso in him was not because he had any officialstatus as Head of the State after the appointed day in terms of theCovenant but only with a view to describe and locate the personconcerned. A person answering the description in said proviso wouldBcontinue to exercise such power. Similar thought can, therefore, bevalidly entertained that the description in the latter part of Sub-Article‘b’ of Article VIII was only to refer to or locate the person.

B) Furthermore, the historical background and the association ofthe royal family with the Temple and the nature of Shebaitship held by aCsuccessive line of Rulers from time to time, were such that the Covenantdesignedly let the management of the affairs of the Temple – with theroyal family, and in the hands of the Ruler of Travancore, principallybecause his official capacity or status as the erstwhile Head of the Stateapparently had nothing to do with the capacity as Shebait of the Temple.D

As discussed in the earlier segment, the Shebaitship was alwaysin the royal family and the Ruler represented the unbroken line of Shebaits.Not only the excerpts from the book written by Mr. V.P. Menon indicatethe deep sense of attachment and devotion of the ruling family to theTemple and Sri Padmanabhaswamy, but some reflection in that behalf isEalso to be noticed in the White Paper on the Indian States which wasinitially prepared in July 1948 and updated in March 1950 by Governmentof India, Ministry of States. It dealt with the United State of Travancoreand Cochin in paragraphs 139 to 145. Paragraphs 141 and 142 dealtwith Devaswoms-Hindu Temples and properties attached to them in thetwo States including that of the temple of Sri Padmanabhaswamy asFunder:- “141. One of the special features of the Covenant is thearrangement in respect of Devaswoms – Hindu temples – andproperty attached to them in the two States including the templeof Shri Padmanabhaswami the tutelary deity of the ruling familyGof Travavancore. In Travancore alone, apart from this importantshrine, on the maintenance of which the State was spending overRs.1 million per annum, there are 348 major Devaswoms and1123 minor Devaswoms. Large revenues are derived by the Statefrom the properties which were attached to these DevaswomsHand provision was made by the State for the maintenance of Devaswoms, from time to time, at varying figures. Hindu opinionin the State was unanimous that not only should the continuedpayment of the existing allotments for the maintenance ofDevaswoms be guaranteed but that adequate compensation shouldalso be given in respect of the properties of the Devaswoms takenover by the State since 1912, and the profits derived from them.The annual contribution thus claimed ranged from rupees ten totwenty millions. The Covenant now provides for a fixed contributionof Rs.5.1 millions for the maintenance of Devaswoms inTravancore out of which a sum of Rs.600,000 is to be contributedtowards the maintenance of the Shri Padmanabhaswami temple.

142. The most important departure from the past practice, whichthe provisions of the Covenant regarding the Devaswoms involve,is that, except in the case of Shri Padmanabhaswami temple, inthe management of which the Ruler will be assisted by an AdvisoryCommittee, the administration of Devaswoms will vest in twoBoards to be set up in these States on which not only the orthodoxHindus but the Harijans also will be represented. This introducesa far-reaching temple reform in that under the arrangementprescribed in the Covenant the Harijans will secure a share bothin the control of the temples and appointments in the DevaswomsDepartment, a position hitherto denied to them.”

It may be mentioned here that said White Paper generally gaveaccount of all such Covenants entered into by various Rulers of theerstwhile Indian States and except the Temple of Sri Padmanabhaswamywhich was specifically dealt with in the Covenant that we are presentlyconcerned with, no other temple in any such Indian State was sospecifically and separately dealt with. In that sense, Article VIII of theCovenant has certain unique features.

C) The White Paper also set out, the Covenant entered into bythe Rulers of Gwalior, Indore and certain other States in Central Indiafor the formation of the United Madhya Bharat which in Sub-Article (2)of Article VII provided:- “(2) Subject to any directions or instructions that may from timeto time be given by the Government of India in this behalf, theauthority –

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A(a) to make laws for the peace and good government of anyscheduled area, (b) to raise, maintain and administer the military forces of theUnited State, and

(c) to control the administration of the fund in Gwalior knownBas the Gangajali Fund and of any other existing fund of asimilar character in any other Covenanting State.

shall vest exclusively in the Raj Pramukh”

The control and administration of the Fund known as GangajaliCFund and of any other existing fund of a similar character in any otherCovenanting State thus vested exclusively in the Raj Pramukh. The WhitePaper in paragraph 159 (iv) described Gangajali Fund as under:- “(iv) Gangajali Fund. - This Fund, which has a corpus ofRs.16,237,000/- was created by the Scindias as a special reserveDfund for use during grave emergency such as famine. His Highnessthe Maharaja of Gwalior has made this fund available for publicbenefit. Subject to any instructions or directions from theGovernment of India, the authority to control and administer thefund is vested in the Rajpramukh of Madhya Bharat.”

In terms of aforestated Article VII (2) the vesting was in favourEof the Raj Pramukh, and not in favour of any concerned Ruler. The RajPramukh, in terms of Article III of said Covenant was to be elected bythe Council of Rulers. Consequently, though Gangajali Fund wasconstituted by the then Maharaja of Gwalior, the control was not vestedin the Ruler of Gwalior, but in the Raj Pramukh. This also meant that theFvesting was in his official capacity as Raj Pramukh, who could be anyother Ruler, and not strictly the Ruler of Gwalior.

The Madhya Bharat Gangajali Fund Trust Act, 1954 was thereafterenacted. In terms of Section 6 of said Act, the properties comprising ofthe Gangajali Fund vested in the Trustees. In accordance with Section 4Gas it originally stood, the Rajpramukh, the Chief Minister of the State,and a nominee of the Rajpramukh were designated Trustees. Later therewere amendments to this Section. Section 7 stipulated that the incomefrom the Fund be released for schemes relating to (a) relief of famine;(b) medical relief; and (c) education. The Act was repealed in 2003 andafter discharging the liabilities of the Trust, the residue was directed toHbe applied to three educational institutions.

Article VII (2) of said Covenant and the consequential legislationare clear indication that even where a Trust was constituted for certaincharitable purposes by the then Maharaja of Gwalior, the administrationof such Trust was not vested in the Ruler of Gwalior. On the other hand,the Trust, in terms of the Covenant itself, was directed to be vested inthe Raj Pramukh in his official capacity.

In comparison, the vesting of administration of the Temple in theinstant case was not only acknowledged by the Covenant to be in trustwith the Ruler of the Covenanting State of Travancore but suchadministration was to continue subject to the control and supervision of“the Ruler of Travancore” even after the Covenant. This illustrationfurther emphasizes that “the control and supervision” of the Ruler ofTravancore was not in any official capacity.

D) It is also pertinent to note here that other Devaswoms andEndowments in the erstwhile State of Travancore also used to be underthe control of the erstwhile Ruler of Travancore. Going by the TravancoreInterim Constitution Act which is referred to in detail in paragraph 10hereinabove, though such control was to be retained by the ruling family,the Covenant expressed clearly to the contrary. Sub-Article ‘c’ of ArticleVIII acknowledged that administration with respect to said otherDevaswoms and Endowments and other properties was earlier underthe management of the Ruler of the Covenanting State of Travancore.It, however, stated that with effect from the appointed day in terms ofthe Covenant, such management would now vest in TravancoreDevaswom Board. This part also finds mention in the relevant paragraphsof the White Paper as quoted above.

Thus, wherever the official capacity of the Head of the State wasresponsible for enabling the Ruler to be in charge of the management oradministration, upon ceasing to have such capacity, the erstwhile Rulerwould have nothing to do with the management of such other Devaswomsor Endowments. In contrast, the case with respect to the Temple andother properties referred to in Sub-Article ‘b’ stands on a completelydifferent footing.

In the premises, it must be held that the expression “the Ruler ofTravancore” used in the latter part of Sub-Article ‘b’ of Article VIIIwas only by way of reference and the purport of said Sub-Article wasnot to invest the said authority and power because he was the Ruler orenjoyed and represented any official status.

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A80) A subsidiary issue still needs to be dealt with, and that iswhether the references in said Article were only to the person who wasthe Ruler at the time the Covenant was entered into and would notinclude successors to said Ruler.

The survey of the concerned Articles of the Covenant as set outBin paragraph 11 hereinabove shows that wherever special attributes orrights were designed to be conferred upon and restricted to “the presentRuler”, the Covenant was quite specific. Articles IV and XIV are clearinstances in that behalf. On the other hand, whenever the person, whoas the Ruler, had signed the Covenant was to be referred, the expressionsused in the Covenant had been “the Ruler of the Covenanting State” orC“the Ruler of Travancore”. These expressions were only to identify theperson who was the Ruler as stated earlier. Thus, the rights such as theentitlements to Privy Purses and the ownership, use and enjoyment ofprivate properties and so also to personal rights, privileges, titles anddignities were concerned, they were assured to “the Ruler of theDCovenanting State”. In addition, certain rights were also granted to themembers of the family and succession to the Gaddi, personal rights andprivileges was expressly assured. Whether those rights or entitlementswere intended to be enjoyed by the successor to the person who signedthe Covenant, would depend upon the nature and content of such rightor entitlement. In so far as the right with respect to Privy Purse payableEto the Ruler of Travancore was concerned, it was expressly limited orconfined to “the present Ruler”, and obviously no successor could claimsuch entitlement. But rest of the incidents or entitlements referred to insaid Articles were without such restriction. Additionally, once successionto the Gaddi of each Covenanting State and to the personal rights and

Fprivileges etc. was guaranteed in accordance with law and custom byArticle XVII, these incidents were designed to be available for enjoymentby the succeeding generations or successors according to law andcustom. If the matter is considered purely from the perspective ofShebaitship of the Temple, or the right of administration referred to inthe latter part of Sub-Article ‘b’ of Article VIII, going by the general lawGof Shebaitship as discussed in the earlier segment, and the successionaccording to law and custom, every successor to the Ruler who signedthe Covenant would be entitled to such right. There is nothing in any ofthe Articles which even purports to limit or restrict such devolution.

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81. In the circumstances, it must be concluded that Article VIIIof the Covenant not only acknowledged and accepted the factum thatthe administration with respect to the Temple, its properties, as well aswith respect to Pandaravaga properties, had already vested in “the Rulerof the Covenanting State of Travancore”, but the said Article expresslycontinued the same status and stipulated that such administration shallbe conducted subject to the supervision and control of “the Ruler ofTravancore”, the meaning of which expression has already been dealtwith and deduced earlier.

C] Effect of the Constitution of India as it stood before theConstitution (Twenty Sixth Amendment) Act, 1971 and of theprovisions of TC Act

82. We now consider the effect of the Constitution of India on thestatus and entitlement of the Ruler of Travancore to the Shebaitship ofthe Temple.

Article 291[53 ]of the Constitution of India dealt with Privy Pursespayable to the Rulers and stipulated that if under any covenant oragreement entered into by the Ruler of any Indian State, any sums wereguaranteed or assured by the Government of the Dominion of India tobe paid as Privy Purse, the sums in that behalf would be charged on andpaid out of the Consolidated Fund of India and that the sums so paid toany Ruler would be exempt from all taxes on income. Article 362[53]ofthe Constitution of India stipulated that in the exercise of the power ofParliament, or of the Legislature of a State, to make laws or in theexercise of their respective executive powers, due regard shall be hadto the guarantee or the assurance given under any such covenant oragreement, as was referred to in Article 291 of the Constitution of India,with respect to personal rights, privileges and dignities of the Ruler of anIndian State.

Article 366(22)[54 ]defined the expression “Ruler” to mean, interalia, one who had signed the Covenant referred to in Article 291 andwho, for the time being, was recognized by the President of India to bethe Ruler of that State and would include successor to such Ruler. Itmay be stated here that there is no dispute that the Ruler of Travancorewho signed the Covenant was recognized by the President of India to be 53 The Article was repealed by the Constitution (Twenty Sixth Amendment) Act, 197154 As it stood before it was amended by the Constitution (Twenty Sixth Amendment)Act, 1971

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Athe Ruler of Travancore. Article 363, which has remained unamended,speaks of “Bar to interference by Courts in disputes arising out of certaintreaties, agreements etc.”

83. Soon thereafter, the TC Act came into force. The relevantprovisions of the TC Act have already been extracted earlier. ChapterBIII of the TC Act specifically dealt with Sree Padmanabhaswamy Templeand matters pertaining to the administration of the Temple. Said ChapterIII of the TC Act is consistent with the latter part of Sub-Article ‘b’ ofArticle VIII of the Covenant and stipulates inter alia that theadministration of the Temple, Sri Pandaravaga properties and all otherproperties and funds of the Temple “vested in trust in the Ruler ofCTravancore” and the sum of Rs.6 lakhs contributed in terms of Sub-Section 1 of Section 18 of the TC Act shall be conducted, “subject to thecontrol and supervision of the Ruler of Travancore” by an ExecutiveOfficer appointed by him. Said Chapter III did not confer any right orbenefit for the first time, where none existed earlier but gave statutoryDrecognition to what was acknowledged and accepted in the latter part ofSub-Article ‘b’ of Article VIII of the Covenant to be the continuingstatus. Section 20 of the TC Act then deals with the constitution of SreePadmanabhaswamy Temple Committee, which is also in tune with saidArticle VIII of the Covenant.

ETwo features must be noticed at this stage. Insofar as incorporatedor unincorporated Devaswoms are concerned, consistent with thestipulations of Sub-Article ‘c’ of Article VIII of the Covenant, the controland administration in respect of such Devaswoms is vested in TravancoreDevaswom Board as stated in Section 15 of the TC Act. There arecertain machinery provisions which deal with the manner in which theFaffairs of the Devaswom Board would be conducted, with which weare not presently concerned. Secondly, Sub-Section 2 of Section 62 ofthe TC Act, in tune with proviso to Sub-Article ‘d’ of Article VIII of theCovenant provides that despite the vesting of administration in CochinDevaswom Board, the regulation and control of rituals and ceremoniesGin the temples referred to therein would continue to be exercised by theRuler of Cochin. Thus, all material and relevant facets emanating fromvarious provisions of the Covenant pertaining to the administration ofthe Temple, Sri Pandaravaga properties and all other properties of theTemple, so also, the management and control of all other Devaswomsand religious endowments were dealt with by the TC Act in a mannerH

which was completely consistent with the relevant provisions containedin the Covenant.

84. As stated in paragraph 16 hereinabove, orders passed by thePresident of India that Rulers of Indian States had ceased to be recognizedas Rulers of respective Indian States were under challenge in MadhavRao Scinda[12], in which case the issues regarding the impact of Articles291, 362, 363 and 366(22) of the Constitution as well as the effect oflegislative measures brought in pursuance of the provisions of Article362 were considered by this Court.

With regard to the nature of Privileges enjoyed by the RulersHidayatullah, C.J., in his opinion stated:-

“23. The Privileges of the Rulers included many items. Amemorandum on these privileges was issued by the Ministry ofStates in 1949. It did not contain an exhaustive list but was drawnup to inform Provincial and Union Governments about them. Itcontained an itemised list of 34 Privileges. They included severalexemptions from the operation of Indian Laws, the enjoyment ofJagir and personal property of the Rulers and members of theirfamilies, the payment by the States of the marriage expenses ofthe brothers and sisters of the Rulers, immunity from someprocesses of courts of law, immunity from requisitioning of theprivate properties of the Rulers and their families and so on andso forth. During the negotiations letters were written to the Rulersto assure them that the Privy Purse was fixed in perpetuity andthe freedoms enjoyed by them would be continued.”

As regards ‘recognition of a Ruler’ under Article 366(22) thelearned Chief Justice observed:

“53. …. The obligation to recognise a Ruler is bound up with theother guarantees contained in Articles 291 and 362. The definitionin Article 366(22) is merely the key to find a particular Ruler……

… … …

72 …This Article renders the certainty of assumption of Rulershipto depend upon recognition and that recognition is worked outprimarily under Covenants and Agreements. The dominant andimmediate purpose and application of the Article depends uponCovenants and Agreements. I have earlier said that the President AB

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Ain recognising a Ruler or withdrawing his recognition does not actarbitrarily but in the light of Covenants and Agreements. All suchinstruments mention law and custom of the family except theBhopal Agreement where a local statute has to be observed. Theselection of a Ruler’s successor thus has to be worked out undera Covenant or Agreement. The Article, therefore, has for itsBdominant purpose the selection of Rulers through the applicationof the Covenants and Agreements.”

The learned Chief Justice then concluded “77. My conclusions on Articles 291, 362 and 366(22) are thatCArticle 291 is not a provision relating to Covenants and Agreementsbut a special provision for the source of payment of Privy Pursesby charging them on the Consolidated Fund and for making thepayment free of taxes on income.It does not in its dominantpurpose and theme answer the description in the latter part ofArticle 363. Article 362 is within the bar of Article 363 becauseDits dominant purpose is to get recognised the Covenants andAgreements with Rulers. However, in so far as the sameguarantees find place in legislative measures the provisions ofArticle 362 need not be invoked and the dispute decided on thebasis of those statutes. Such a case may not attract Article 362Eand consequently the bar of Article 363 may not also apply.Article366(22) is within the description so long as the President inrecognising a Ruler or a successor is effectuating the provisionsof a Covenant or Agreement. It may apply when the discretionexercised is relatable to his powers flowing from the Covenantsread with the article. However where the President acts whollyFoutside the provisions of Article 366(22) his action can bequestioned because the bar applies to bona fide and legitimateaction and not to ultra vires actions.”

(emphasis added)

GThe majority judgment was authored by Shah, J. (as the learnedChief Justice then was). With regard to Articles 291 and 362, it wasobserved:- “126. Even after the integration of States, the obligations underthe covenants were to be met out of the revenues of the respectiveStates. The covenants and the various stages through whichH

ultimate integration was achieved probably remained Acts of State.The rights and obligations accruing or arising under those acts ofState could be enforced only if the Union of India had acceptedthose rights and obligations. After the Constitution the obligationto pay the privy purse rested upon the Union of India, not becauseit was inherited from the Dominion of India, but because of theconstitutional mandate under Article 291. The source of theobligation was in Article 291, and not in the covenants and theagreements.Reference to the covenants and agreements in Article291 was for defining the privy purse: the obligations of theProvinces in respect of the “Provincially merged States”, andobligation of the Union of States in respect of the States mergedin such Unions, ceased by recognition to retain their originalcharacter. The obligation which arose out of the merger agreementand was on that account an act of State shed its original characteron acceptance by the Constitution. The entity obliged to pay theprivy purse did not after the Constitution remain the same, thesource out of which the obligation was to be satisfied was not theoriginal source; the incident relating to exemption from paymentof tax was vitally altered, and the amount also was in some casesdifferent. Whereas the liability to pay the privy purse to the Rulersunder the merger agreements was assured by the DominionGovernment, the Constitution imposed upon the Union Governmenta directive to pay the privy purse.

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129. The structure of Article 362 is somewhat different. That Articleimposes restrictions upon the exercise of legislative and executivefunctions. Recognition of the personal rights and privileges of theRulers arising out of the covenants is not explicit, but the injunctionthat in the exercise of legislative and executive power due regardshall be had to the guarantees, clearly implies acceptance andrecognition of the personal rights, privileges and dignities. TheConstitution thereby affirms the binding force of the guaranteesand assurances under the covenants of personal rights, privilegesand dignities, but unlike the guarantee of payment of the privypurse in Article 291, the guarantee under Article 362 is of theobligation under the original covenants and agreements executed ABC

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by the Rulers, barring those regarding which there is expresslegislation enacted to give effect to certain personal rights andprivileges e.g., Income Tax Acts, 1922 and 1961, Wealth Tax Act,1957, Gift Tax Act, 1958, notifications under the Sea CustomsAct, 1878, Code of Civil Procedure, 1908 and Code of CriminalProcedure, 1898. A Ruler seeking to enforce privileges whichparliamentary statutes have recognised relies for right to reliefupon the mandate of the statutes, and not of the covenant.”

The majority Judgment went on to observe: -

(Emphasis added)

The majority Judgment went on to observe: - “134. In dealing with the dimensions of exclusion of the exerciseof judicial power under Article 363, it is necessary to bear in mindcertain broad considerations. The proper forum under ourConstitution for determining a legal dispute is the Court which isby training and experience, assisted by properly qualified advocates,fitted to perform that task. A provision which purports to excludethe jurisdiction of the Courts in certain matters and to deprive theaggrieved party of the normal remedy will be strictly construed,for it is a principle not to be whittled down that an aggrieved partywill not, unless the jurisdiction of the Courts is by clear enactmentor necessary implication barred, be denied his right to seekrecourse to the Courts for determination of his rights. The Courtwill interpret a statute as far as possible, agreeably to justice andreason and that in case of two or more interpretations, one whichis more reasonable and just will be adopted, for there is always apresumption against the law maker intending injustice and unreason.The Court will avoid imputing to the Legislature an intention toenact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain andunambiguous. The provision in a statute will not be construed todefeat its manifest purpose and general values which animate itsstructure. In an avowedly democratic polity, statutory provisionsensuring the security of fundamental human rights including theright to property will be, unless the contrary mandate precise andunqualified, be construed liberally so as to uphold the right. Theserules apply to the interpretation of constitutional and statutoryprovisions alike.

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SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

136. Jurisdiction to try a proceeding is barred under the first limbof Article 363 if the dispute arises out of the provision of acovenant: it is barred under the second limb of Article 363 if theCourt holds that the dispute is with respect to a right arising out ofa provision of the Constitution relating to a covenant. A disputethat an order of an executive body is unauthorised, or a legislativemeasure is ultra vires, is not one arising out of any covenant underthe first limb of Article 363, merely because the order or themeasure violates the rights of the citizen which, but for the act ormeasure, were not in question. The dispute in such a case relatesto the validity of the act or the vires of the measure. Exclusion ofthe Court’s jurisdiction by the terms of the relevant words lies in anarrow field. If the constitutional provision relating to a covenantis the source of the right claimed to accrue, or liability claimed toarise, then clearly under the second limb the jurisdiction of theCourt to entertain a dispute arising with respect to the right orobligation is barred. We need in the present case express no opinionon the question whether a dispute that an executive act or legislativemeasure operating upon a right accruing or liability arising out ofa provision is invalid falls within the second limb of Article 363.We do not therefore pronounce upon the argument of MrPalkhivalla that the dispute whether the recognition of a Ruler iswithdrawn without authority of law is not excluded from thejurisdiction of the Courts, because it is not a dispute with respectto a right accruing under a provision of the Constitution.

(emphasis added)

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(emphasis added)

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138. Article 366(22) is, in our judgment, a provision relating torecognition of Rulers: that is the direct and only purpose of theprovision. It is not a provision relating to a covenant. Thequalification of a person being recognized as a Ruler is undoubtedlythat he is a Prince, Chief or other person who had entered into acovenant or agreement as is referred to in Article 291, or that heis the successor to such a Ruler. Reference to the covenant orthe agreement of the nature mentioned in Article 291 is fordetermining who may be recognized as a Ruler. Because of thatreference the provision enacted with the object of conferringauthority upon the President to recognize a Ruler, will not bedeemed one relating to the covenant or agreement.

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SUPREME COURT REPORTS

143. The source of the right to receive the Privy Purse is forreasons already stated the constitutional mandate: it is not in thecovenant. Reference to the covenant in Article 291 merelyidentifies the sum payable as Privy Purse: it does not make Article291 a provision relating to the covenant. A dispute as to the rightto receive the Privy Purse, is therefore, not a dispute arising outof the covenant within the first limb of Article 363, nor is it adispute with regard to a right accruing or obligation arising out ofa provision of the Constitution relating to a covenant.”

(emphasis added)

K.S. Hegde, J. in his opinion stated:-

“209. Article 363 has two parts: the first part deals with disputesarising out of any provisions of a treaty, agreement or covenant,etc. and the second part with dispute in respect of any rightaccruing under or any liability or obligation arising out of any ofthe provisions of the Constitution, relating to any such treaty,agreement, covenant, engagement, Sanad or other similarinstrument.

210. Dealing with Articles 362 and 363 this is what the WhitePaper says in para 240 (at p. 125):

“Guarantees regarding rights and privileges.—Guaranteeshave been given to the Rulers under the various agreementsand covenants for the continuation of their rights, dignities andprivileges. The rights enjoyed by the Rulers vary from State toState and are exercisable both within and without the states.They cover a variety of matters ranging from the use of thered plates on cars to immunity from Civil and Criminal jurisdictionand exemptions from customs duties, etc. Even in the past itwas neither considered desirable nor practicable to draw upan exhaustive list of all these rights. During the negotiationsfollowing the introduction of the scheme embodied in theGovernment of India Act, 1935, the Crown Department hadtaken the position that no more could be done in respect of therights and privileges enjoyed by the Rulers than a generalassurance of the intention of the Government of India tocontinue them. Obviously, it would have been a source ofperpetual regret if all these matters had been made as justiciable. Article 363 has, therefore been embodied in theConstitution which excludes specifically the Agreements ofMerger and the covenants from the jurisdiction of Courts exceptin cases which may be referred to the Supreme Court by thePresident. At the same time, the Government of Indiaconsidered it necessary that constitutional recognition shouldbe given to the guarantees and assurances which theGovernment of India have given in respect of the rights andprivileges of Rulers. This is contained in Article 362, whichprovides that in the exercise of their legislative and executiveauthority, the legislative and executive organs of the Unionand States will have due regard to the guarantees given to theRulers with respect to their personal rights, privileges anddignities.”

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212. As seen earlier Article 363 has two parts. The first partrelates to disputes arising out of Agreements and Covenants etc.The jurisdiction of this Court as well as of other Courts is clearlybarred in respect of disputes falling within that part. Then comesthe second part of Article 363, which refers to disputes in respectof any right accruing under or any liability or obligation arising outof any of the provisions of the Constitution relating to anyagreement, covenant etc. We are concerned with this part ofArticle 363. Before a dispute can be held to come within thescope of that part, that dispute must be in respect of a right accruingunder or the liability or obligation arising out of a provision of theConstitution and that provision of the Constitution must relate toagreements, covenants etc.

213. The principal dispute with which we are concerned in thesecases is whether the President has the power to abolish all Rulersunder Article 366 (22). Quite plainly this dispute cannot be held tobe dispute in respect of a right accruing or a liability or obligationarising under any provision of the Constitution. Herein we are notconcerned with any right, liability or obligation. We are concernedwith powers of the President under Article 366(22). What is indispute is the true scope of the power of the President underArticle 366(22). That dispute does not fall within Article 363. Poweris not the same thing as right. Power is an authority whereas a AB

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1130SUPREME COURT REPORTS

Aright in the context in which it is used in Article 363, signifiesproperty. The fact that the Court’s decision about the scope ofthe power of the President under Article 366(22) may incidentallybear on certain rights does not make the dispute, a dispute relatingto any right accruing under any provision of the Constitution. Adispute as regards the interpretation of a provision of theBConstitution is not a dispute within the contemplation of the secondpart of Article 363 as it is not a dispute in respect of any right,liability or obligation. The contention of the petitioners is that theimpugned orders are ultra vires the powers of the President, hencenull and void. Such a dispute does not come within Article 363.”

C85. Hidayatulla, C.J., found Article 291 to be a special provisionfor the source of payment of Privy Purses and the same thought wasexpressed in paragraph 126 by the majority Judgment which also foundthe structure of Article 362 to be different. Unlike Article 291, whichitself was the source for payment of Privy Purses, Article 362 stipulatedDthat due regard shall be had to the guarantees or assurances given underany covenant or agreement while exercising legislative or executivepower. Thus, the source for enjoyment of personal rights, privileges anddignities referred to in Article 362 would be in the statutory provisionsenacted in terms of the obligation spelt out in Article 362. To the extentany legislative measure was undertaken, or executive power wasEexercised, with due regard to the guarantees or assurances given underany covenant or agreement, the source would be in such measure orexercise.

86. Insofar as the present segment is concerned, it must, therefore,be concluded that the relevant provisions of the Constitution of India asFwell as that of the TC Act did not, in any way, upset or abridge the statusenjoyed by the Ruler of Travancore as Shebait of the Temple and alsodid not, in any manner, adversely impact the right of administration vestedin the Ruler of Travancore. As a matter of fact, the relevant provisionsof the TC Act afforded statutory flavour to the status contemplated byGArticle VIII of the Covenant.

The submission that by virtue of Article 363 of the Constitution,the present dispute could not be entertained shall be considered later.

D] Effect of the Constitution (Twenty Sixth Amendment)Act, 1971H

87. The Statement of Objects and Reasons as well as the natureof this Constitutional Amendment; the newly incorporated Article 363Aand the amended definition of Ruler in Article 366(22) have been set outin paragraph 17 hereinabove. As the Statement of Objects and Reasonsindicated, the concept of rulership with Privy Purses and special privilegeswas found to be incompatible with egalitarian social order and as such itwas decided to terminate the Privy Purses and privileges of the Rulersso also it was decided to terminate expressly the recognition alreadygranted to such Rulers and to abolish Privy Purses and extinguish allrights and obligations in respect of Privy Purses. This ConstitutionalAmendment deleted Articles 291 and 362; and inserted Article 363Awhich now expressly stipulates inter alia that any person who wasrecognized to be the Ruler of an Indian State or his Successor, shall,cease to be recognized, as such Ruler or Successor, and all rights, liabilitiesand obligations in respect of Privy Purses stand extinguished. Article366(22) was also accordingly amended and in terms of the amendeddefinition, “Ruler” now means, inter alia, the person who was recognizedas the Ruler of an Indian State or as a successor to such Ruler, beforethe commencement of said Constitutional Amendment. With the deletionof Article 291, the rights, liabilities and obligations with respect to PrivyPurses stood extinguished. The guiding principles emanating from Article362 that in exercise of legislative or executive power, due regard shallbe had to the guarantee or assurance given in any Covenant or agreementreferred to in Article 291 also ceased to exist.

88. Before we consider the impact of said ConstitutionalAmendment, we must note how the challenge raised by the co-Ruler ofIndian State of Kurundwad Jr. and successor to the late Ruler of IndianState of Mysore to said Constitutional Amendment was dealt with bythe Constitution Bench of this Court in Raghunathrao Ganpatrao[14].At the outset, in para 36 of the leading judgment it was observed:

“36. We are not concerned about the particulars of the agreementsexecuted by other Rulers of various States.”

Pandian, J. who authored the leading Judgment, referred toantecedent facts starting from the Constitution (24[th] Amendment) Bill,1970 as well as the challenge raised in Madhav Rao Jivaji RaoScindia[12 ]as follows:- “38. On May 14, 1970, the Constitution (Twenty-fourthAmendment) Bill, 1970 for abolition of the above said privy purse, AB

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privileges etc. conferred under Articles 291, 362 and 366(22) wasintroduced in the Lok Sabha by the then Finance Minister, ShriY.B. Chavan. The Bill contained three clauses and a shortStatement of Objects and Reasons. The statement reads thus:

“The concept of rulership, with Privy Purses and SpecialPrivileges unrelated to any current functions and socialpurposes, is incompatible with an egalitarian social order.Government have, therefore, decided to terminate the PrivyPurses and Privileges of the Rulers of former Indian States.Hence this Bill.”

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C39. On September 2, 1970 the Bill was voted upon in the LokSabha. But on September 5, 1970 the Rajya Sabha rejected thesame since the Bill failed in the Rajya Sabha to reach the requisitemajority of not less than two-third members present as requiredby Article 368 and voting. Close on the heels of the said rejection,the President of India purporting to exercise his powers underDclause (22) of Article 366 of the Constitution, signed an Orderwithdrawing recognition of all the Rulers in the country en masse.A communication to this effect was sent to all the Rulers in Indiawho had been previously recognised as Rulers.

40. This Presidential Order de-recognising the Rulers wasEquestioned in Madhav Rao Scindia v. Union of India[12 ]by filingwrit petitions under Article 32 of the Constitution challenging it asunconstitutional, ultra vires and void. An eleven-Judge Bench ofthis Court by its judgment dated December 15, 1970 struck downthe Presidential Order being illegal, ultra vires and inoperative onFthe ground that it had been made in violation of the powers of thePresident of India under Article 366(22) of the Constitution anddeclared that the writ petitioners would be entitled to all their pre-existing rights and privileges including right to privy purses as ifthe impugned orders therein had not been passed. Here, it may benoted that Mitter and Ray, JJ. gave their dissenting judgment.”

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While dealing with the decision in Madhav Rao Jivaji RaoScindia[12] it was observed:- “60. So far as Article 362 is concerned, it has been held by majorityof the Judges that the said article is plainly a provision relating tocovenants within the meaning of Article 363 and a claim to enforce H

the rights, privileges and dignities under the covenants therefore,are barred by the first limb of Article 363 and a claim to enforcethe recognition of rights and privileges under Article 362 are barredunder the second limb of Article 363 and that the jurisdiction ofthe courts however, is not excluded where the relief claimed isfounded on a statutory provision enacted to give effect to personal”rights under Article 362.

The leading Judgment thereafter observed: - “74. The agreements entered into by the Rulers of the Stateswith the Government of India were simple documents relating tothe accession and the integration and the “assurances andguarantees” given under those documents were only for thefixation of the privy purses and the recognition of the privileges.The guarantees and the assurances given under the Constitutionwere independent of those documents. After the advent of theConstitution, the Rulers enjoyed their right to privy purses, privateproperties and privileges only by the force of the Constitutionandin other respects they were only ordinary citizens of India like anyother citizen; of course, this is an accident of history and with theconcurrence of the Indian people in their Constituent Assembly.

75. Therefore, there cannot be any justification in saying that theguarantees and assurances given to the Rulers were sacrosanct andthat Articles 291 and 362 reflected only the terms of the agreements andcovenants. In fact as soon as the Constitution came into force, theMemoranda of Agreements executed and ratified by the States and Unionof States were embodied in formal agreements under the relevant articlesof the Constitution and no obligation flowed from those Agreements andCovenants but only from the Constitutional provisions. To say differently,after the introduction of Articles 291 and 362 in the Constitution, theAgreements and Covenants have no existence at all. The reference toCovenants and Agreements was casual and subsidiary and the sourceof obligation flowed only from the Constitution. Therefore, the contentionurged on the use of the words ‘guaranteed’ or ‘assured’ is without anyforce and absolutely untenable.

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91. After the commencement of the Constitution, in pursuance ofArticle 366(22), the Rulers were recognised and they had beenenjoying the privy purses, privileges, dignities etc. on the basis ofthe relevant constitutional provisions. Pursuant to the resolutionpassed by the All India Congress Committee in 1967, the Unionof India introduced the Twenty-fourth Amendment Bill in 1970 toimplement the decision of the All India Congress Committeefavouring removal of privy purses, privileges etc. But the Bill thoughpassed in the Lok Sabha failed to secure the requisite majority inthe Rajya Sabha and thereby it lapsed. It was only thereafter, thePresident of India issued an Order in exercise of the powers vestedin him under Article 366(22) de-recognising the Rulers and stoppingthe privy purses, privileges etc. enjoyed by the Rulers. This Orderpassed by the President was the subject-matter of challenge inMadhav Rao[12]. The Supreme Court struck down the Order ofthe President as invalid as in the view of the Court de-recognitionof the Rulers would not take away right to privy purses whenArticles 291 and 362 were in the Constitution. It was only in thatcontext, the observations which have been relied upon by Mr SoliJ. Sorabjee, were made. The Twenty-sixth Amendment itself waspassed by Parliament to overcome the effect of this judgment.Now by this Amendment, Articles 291 and 362 are omitted, Article363-A is inserted and clause (22) of Article 366 is amended.Therefore, one cannot be allowed to say that the abovesaid omittedarticles and unamended clause were the essential part of theconstitutional scheme. So they have to be read only in the contextof a challenge made to the Presidential Order which sought torender nugatory certain rights guaranteed in the Constitution whichwere then existing. In any event, the constitutional bar of Article363 denudes the jurisdiction of any Court in disputes arising fromcovenants and treaties executed by the Rulers.The statement ofObjects and Reasons of Twenty-sixth Amendment clearly pointsout that the retention of the above articles and continuation of theprivileges and privy purses would be incompatible with theegalitarian society assured in the Constitution and, therefore, inorder to remove the concept of rulership and terminate therecognition granted to Rulers and abolish the privy purses, thisAmendment was brought on being felt necessary.

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96. Permanent retention of the privy purse and the privileges ofrights would be incompatible with the sovereign and republicanform of Government. Such a retention will also be incompatiblewith the egalitarian form of our Constitution. That is the opinionof the Parliament which acted to repeal the aforesaid provisionsin exercise of its constituent power. The repudiation of the right toprivy purse privileges, dignities etc. by the deletion of Articles 291and 362, insertion of Article 363-A and amendment of clause (22)of Article 366 by which the recognition of the Rulers and paymentof privy purse are withdrawn cannot be said to have offendedArticle 14 or 19(g) [sic 19(1)(f)] and we do not find any logic insuch a submission. No principle of justice, either economic, politicalor social is violated by the Twenty-sixth Amendment. Politicaljustice relates to the principle of rights of the people, i.e. right touniversal suffrage, right to democratic form of Government andright to participation in political affairs. Economic justice isenshrined in Article 39 of the Constitution. Social justice isenshrined in Article 38. Both are in the directive principles of theConstitution. None of these rights are abridged or modified bythis Amendment. We feel that this contention need not detain usanymore and, therefore, we shall pass on to the next point indebate.”

Mohan, J. in his separate opinion, concurred with the majoritydecision and observed:-

“151. The guarantees in Articles 291 and 362 are guarantees forthe payment of privy purses. Such a guarantee can always berevoked in public interest; more so, for fulfilling a policy objectiveor the directive principles of the Constitution. This is preciselywhat the preamble to the impugned Amendment says. That beingso, the theory of sanctity of contract or the unamendability ofArticle 291 or 362 does not have any foundation. The theory ofpolitical justice is also not tenable since political justice means theprinciple of political equality such as adult suffrage, democraticform of Government, etc.

152. The treaties/covenants/etc. entered into between the Unionof India and the Rulers were as a result of political action. Nojusticiable rights were intended to be created. Article 363 as itstood in its original form spells out this proposition. The rights and ABC

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Aprivileges in the articles prior to the Twenty-sixth Amendmentwere as acts of State of the Government and not in recognition ofthe sacrifices of the Rulers. By no means, can it be contendedthat these guarantees given to the Rulers were ever intended tobe continued indefinitely.”

BThis Court, thus, rejected all the challenges and held theConstitution (Twenty Sixth Amendment) Act, 1971 to be valid.

89. Consequent to the de-recognition of Rulers of Indian Statesand abolition of Privy Purses by the Constitution (Twenty SixthAmendment) Act, 1971, the Parliament enacted 1972 Act. The relevantCprovisions of 1972 Act are set out in paragraph 19 hereinabove. It soughtto amend certain enactments which had granted privileges to formerRulers. One such example pertaining to the provisions of the WealthTax Act is set out in detail in said paragraph 19.

The Statement of Objects and Reasons for 1972 Act disclosesDthat indefinite continuance of the privileges was found indefensible, butthe withdrawal or cessation would not be immediate “to enable the formerRulers to adjust progressively.”

Thus, unlike Privy Purses, the termination of which was intendedto be immediate and therefore the source for Privy Purses, namely, ArticleE291 itself was deleted, the deletion of Article 362 by itself would notresult in cessation of every privilege or personal right with respect towhich “due regard” was had while exercising legislative power in termsof Article 362 before its deletion. The source being in the statutoryenactments, despite deletion of Article 362, if the concerned legislationscontinue to remain in operation, the personal rights or privileges couldFstill be enjoyed. That is precisely why, on the strength of various statutoryprovisions certain benefits in the form of personal rights or privileges arestill available. It is for the concerned legislatures to take appropriatesteps in accordance with law, either to terminate the effect and operationof extension of such benefits or allow them to operate or lessen theGextent and cause gradual changes as was sought to be undertaken by1972 Act.

90. Thus, if the provisions of the TC Act to the extent it enactedChapter III of Part I dealing with “Sree Padmanabhaswamy Temple”and related provisions are taken to be an exercise by the concernedLegislature with “due regard” to the assurances and guarantees inH

covenant or agreements in terms of Article 362 as it existed then evenwith deletion of Article 362 the concerned provisions would still beoperative so long as appropriate steps are not taken by the concernedLegislature.

91. As is evident from the White Paper referred to hereinabove,the assurances and guarantees given in the covenants or agreementsentered into with various Rulers normally had four elements; i) that certainsums shall be payable to the Rulers by way of Privy Purses; ii) thatcertain properties mentioned as private properties of the Ruler wouldvest in the Ruler in his personal capacity; iii) that succession to the Gaddiwould go strictly by the prevalent law and custom; and iv) that personalrights, privileges and dignities enjoyed by the Rulers and in some casesby the members of the family of the Ruler, would continue to be available.

92. Out of the aforesaid four elements, the elements (i) and (iv)were covered by Articles 291 and 362 as they stood before being deleted.The effect of such deletion has been discussed and dealt with. Theelements (ii) and (iii) are normal incidents which were not within thescope of said Articles 291 and 362. Despite the Constitution (TwentySixth Amendment) Act, 1971, the private properties of the Ruler wouldcontinue to be available for normal succession and devolution inaccordance with the law and custom. Though concepts such as Ruler orRulership have ceased to operate, succession to the Gaddi as an incidentmay still operate. For instance, there could be a sword or any otherceremonial weapon, or a sarpech, or heirloom jewellery, which must goby rule of primogeniture, as against the normal way of succession withregard to other personal properties. All such incidents have not beenterminated. The clear example is in clause (iv) of sub-section (1) ofSection 5 of the Wealth Tax Act, 1957 which uses the expression“jewellery in the possession of any Ruler, not being his personal property”which had been recognized as his “heirloom”. Such items or propertieswhich fall in or are connected strictly with element (iii), may descendalong with succession to the Gaddi and by very nature must remainimpartible. On the other hand, if normal principles of succession areapplied, at any given level of succession, such items or propertiesrecognized as “heirloom” may be required to be shared amongst morethan one person and would therefore cease to be impartible.

93. These four elements were covered by Articles XIV, XV, XVIIand XVI respectively in the Covenant in the present case. However, A

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Aapart from the said four assurances, the Covenant also dealt with anadditional and important aspect in Article VIII(b). It accepted andacknowledged that the administration with respect to the Temple, SriPandaravaga properties, and the property of the Temple which was alsovested in the Ruler of the Covenanting State would continue to beconducted in the manner stipulated therein, subject to the control andBsupervision of the Ruler of Travancore. The effect of such Article andthe fact that such vesting was not in the capacity as Ruler has alreadybeen dealt with. It has also been concluded that the expression “TheRuler of Travancore” was only to locate and describe the person whowould be in control and supervision of the administration.C

94. In the premises, we must conclude that the Constitution(Twenty Sixth Amendment) Act, 1971 did not in any way impact oraffect the administration of the Temple, Sri Pandaravaga properties andthe properties of the Temple, which continued to be under the controland supervision of the Ruler of Travancore.

DE] Effect of the death of the person who had signed theCovenant as the Ruler of the Covenanting State of Travancore

95. As stated in paragraph 21 hereinabove, Sree Chithira ThirunalBalarama Varma who had signed the Covenant as the Ruler of theCovenanting State of Travancore, passed away on 19.07.1991.E96. It was submitted on behalf of the State that the said Ruler ofthe Covenanting State of Travancore was duly recognized by thePresident of India in terms of Article 366(22) of the Constitution as itstood before the Constitution (Twenty Sixth Amendment) Act, 1971,and that even after the said Amendment, by virtue of amended definitionof Ruler under Article 366(22) he continued to fulfil the criteria, andFcould answer the definition of “Ruler”. It was further submitted that hewas thus, the recognized Ruler of Travancore and in that capacity hecould, during his lifetime have the benefit of Chapter III of Part I of theTC Act; that after his death, no person or a successor could be recognizedas Ruler of Travancore in terms of Article 366(22), as amended; and asGsuch, no person can come within the meaning of expression “Ruler ofTravancore” as used in said Chapter III of Part I, and consequently, noperson or successor could avail of the benefit of various provisions inChapter III of Part I of the TC Act.

On the other hand, the submission on behalf of the appellants aswell as the Intervenors supporting them is that for the purposes of saidH

Chapter III of Part I, the definition in Article 366(22) would not be thegoverning definition. The matter has to be assessed going by the contextin which the expression had been used in the Covenant and the TC Act.

97. The discussion in the first and second segments hereinbeforehave led us to conclude that as on the day when the Covenant becameeffective, the Ruler of the Covenanting State of Travancore, was holdingthe office of Shebait of the Temple, which was not in his official capacityas the Ruler; and that the effect of Sub Article (b) of Article VIII wasnot to invest any new authority and power in him for the first time becauseof his official status, but an acknowledgement of the existing authorityand power already vested in him. It has also been concluded by us thatthe expression “Ruler of Travancore” in the Covenant and in the TCAct was only to identify the person, and that the official status of theRuler of Travancore had no relation with such administration.

The principles emanating from various decisions which wereconsidered in the first segment have been culled out by us in para 72hereinabove. If according to the settled principles, the Shebaitship is likeany other heritable property which would devolve in accordance withcustom or usage, and that the rule of custom must prevail in all cases,even after the death of the erstwhile Ruler of Travancore in 1991, theShebaitship of the Temple being unconnected with the official status ofthe person who signed the Covenant, must devolve by the applicablelaws of succession and custom.

The proclamation issued on 10.08.1947 as referred to in paragraph8 hereinabove clearly states the applicable principles of succession. Thedecision of this Court in Revathiannal[13] is also to similar effect. Thus,going by concerned principles of succession and custom, the successorcan easily be located.

98. It may be relevant to note here that the TC Act has not definedthe expression “Ruler”, and the definition of Ruler under Article 366(22) of the Constitution is for the purposes of the Constitution whereasthe expression “Ruler” as defined under Article 363 of the Constitutionin inclusive manner is for the purposes of said Article alone. In MaharajaPravir Chandra Bhanj Deo Kakatiya vs. The State of MadhyaPradesh[55] the Constitution Bench of this Court had stated:- AB

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A“… There is nothing in the provisions of Art. 366(22) whichrequires a court to recognize such a person as a Ruler for purposesoutside the Constitution. …”

Similarly, in Rani Ratna Prova Devi vs. State of Orissa andanother[56], another Constitution Bench of this Court had observed:-B

“…But it must be remembered that the definitions prescribed byArt. 366 are intended for the purpose of interpreting the articlesin the Constitution itself, unless the context otherwise requires,and so, the argument that the definition of the word “Ruler”prescribed by the Act is inconsistent with the definition prescribedCby Art. 366 (22), has really no substance or meaning. …”

99. The definitions of ‘Ruler’ in Articles 363 and 366(22) thus donot ipso facto have any application to the provisions of the TC Act,unless the TC Act expressly stipulates so or impliedly refers to suchdefinitions either under Article 363 or under Article 366(22). With theDdeletion of Articles 291 and 362, the scope of definition in Article 366(22)to find a particular Ruler for conferral of advantages referred to in boththe Articles, has ceased to have any significance. However, the conceptof the Ruler and Rulership, as discussed hereinabove are still relevantinsofar as certain legislations and provisions are concerned. Many ofthese legislations, normally define the expression themselves, or byEreference incorporate the definition as given in Article 363; for example,Section 87B of the Code of Civil Procedure, 1908. No such provisionwas made in the TC Act. The question therefore, is whether the expression“Ruler of Travancore” as appearing in Chapter III of Part I of the TCAct is capable of being understood to include his successors accordingFto custom.

100. A perusal at Sections 15, 62 and Chapter III of Part I of theTC Act clearly shows that these provisions were put on the StatuteBook having “due regard” to the Covenant. Since the source of theseprovisions lies in the Covenant, and there being no definition of “Ruler ofGTravancore”, or for that matter “Ruler of Cochin”, one has to considerthe relevant Articles of the Covenant to assess or understand thesignificance of the said provisions of the TC Act. Sections 15, 62 andChapter III of Part I of the TC Act were enacted principally to giveeffect to Article VIII and generally to give effect to the Covenant.

101. In the earlier segments, we have already concluded thatArticle VIII had clearly used the expression “now vested in trust in theRuler” while speaking about the administration of the Temple, SriPandaravaga properties, and the properties of the Temple. The Covenantthus, not only acknowledged such status, but in sub-Article ‘b’ of ArticleVIII, intended to continue the status where such person would continueto exercise control and supervision over the administration of the Temple.This was in the backdrop of the long standing association of the rulingfamily with the Temple, and the Shebaitship held by the continuous lineof Rulers. The expression “Ruler of Travancore” used in the provisionsof the TC Act must therefore be understood in the same light. As heldearlier, the Covenant never intended to restrict, or do away, with theright of administration already vested in the “Ruler of Travancore”, andsuch expression was not intended to be confined to the present incumbent,or the person who had signed as the Ruler of the Covenanting State ofTravancore. Going by the normal incidents of Shebaitship including theheritability, the context in which the expression was used in Article VIIIof the Covenant, and carried in the provisions of the TC Act, it must beheld that such expression must include the successors to the person whohad signed the Covenant.

102. Apart from the Covenant, the expression “Ruler ofTravancore” as used in Chapter III of Part I of the TC Act did notdepend upon any other enactment or instrument to look for the successorto the Ruler of Travancore, nor is there any express or implied intendmentto go by the definition of “Ruler” either under Article 363 or 366(22) ofthe Constitution. The Covenant speaks of succession, according to lawand custom, and that is how the successor must be identified. AsHidayatullah, C.J., opined in paragraphs 53 and 72[57] of his Judgment inMadhav Rao Jivaji Rao Scindia[12 ]the definition in Article 366(22) as itthen stood was merely a key to find a particular Ruler, and that theselection of a successor to the Ruler was required to be worked outunder the Covenant. The method of selecting the successor under Article366(22) as it then stood was not by way of any different formula orprinciple but was rooted in the concerned law and custom. That beingthe underlying principle as available from the Covenant, there would notbe any difficulty in identifying the successor as and when the occasionarises.

57 Quoted in paragraph 84 hereinabove

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A103. At the same time, if the submission that the expression “Rulerof Travancore” in the TC Act must be made dependent on the recognition,is accepted, it would lead to incalculable inconvenience and prejudice.First, it was never the intention of the Legislature to make such anexpression dependent upon any recognition. Secondly, there is no powerin the President of India, after the Constitution (Twenty SixthBAmendment) Act, 1971 to grant any such recognition. Thirdly, theconsequence of such an interpretation would mean that the unbrokenline of succession to the Shebaitship would stand terminated making theentire Chapter III of Part I of the TC Act meaningless and redundant.Consequently, the administration of the Temple, Sri PandaravagaCproperties and the properties of the Temple would suffer immenseprejudice. Section 15 of the Act which vested the rights, authority andjurisdiction in respect of Devaswoms and Hindu Religious Endowmentsin the Travancore Board is also inapplicable to Chapter III of Part I.This would result in a complete void. The Legislature could not be ascribedof such an intention. On the other hand, the Legislature must be taken toDbe well aware that the Shebaitship was heritable, and remained in theroyal family for few centuries in an unbroken line of succession. It is forthis reason, consistent with the terms of the Covenant, a specialdispensation was made in Chapter III of Part I of the TC Act.

104. It may be relevant to note that the State in two affidavitsEfiled in the Suits as referred to hereinabove, has taken a clear stand thatthe Temple is managed by the Travancore Palace. These affidavits werefiled by responsible officers of the State, well after the death of the thenRuler in 1991. The understanding on part of the State machinery, or theofficials by itself can never be the determining criteria, but that is aFrelevant factor to be taken note of, as observed by this Court in Nationaland Grindlays Bank Ltd. vs. Municipal Corporation of Greater,Bombay[58] and in Desh Bandhu Gupta and Co. and others vs. DelhiStock Exchange Association Ltd.[59]

105. In the instant case, since the Shebaitship had vested in theGRuler of Travancore, not in his official capacity, the normal incident ofheritability must get attached to the office of such Shebaitship inaccordance with governing principles of succession and custom.Therefore, when it comes to the matter concerning the administration of 58 (1969) 1 SCC 541 para 5H59 (1979) 4 SCC 565 para 9

the Temple, Sri Pandavaraga properties and the properties of the Temple,the expression “the Ruler of Travancore” as appearing in Chapter III ofPart I of TC Act must mean the successor in accordance with theprevalent law and custom. In the process one need not go to the definitionof Ruler either under Article 366(22) or under Article 363 of theConstitution of India. Consistent with the principles that have been culledout in para 72 hereinabove, after the death of the person who was incontrol and supervision of the administration, the heritable interest mustdevolve in accordance with the customary rights.

106. Further, unless and until the line of succession of theShebaitship and in-charge of the administration, is completely extinct,there can be no question of escheat as observed by the High Court. InKutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust v.Collector, Haridwar[60], this Court had an occasion to consider the issueof escheat in the context of a Public Trust. In that case, after the deathof one Mohanlal in whose name patta of the property was secured, theCollector had concluded that the property vested in the State Governmentby operation of law. Setting aside the decision of the High Court whichhad affirmed the conclusions of the Collector, this Court observed:- “20. Section 29 of the Hindu Succession Act, 1956 has beeninvoked by the Collector. Section 29 provides as follows:

“29. Failure of heirs.—If an intestate has left no heir qualifiedto succeed to his or her property in accordance with theprovisions of this Act, such property shall devolve on theGovernment; and the Government shall take the propertysubject to all the obligations and liabilities to which an heir wouldhave been subject.”

Section 29 embodies the principle of escheat. The doctrine ofescheat postulates that where an individual dies intestate and doesnot leave behind an heir who is qualified to succeed to the property,the property devolves on the Government. Though the propertydevolves on the Government in such an eventuality, yet theGovernment takes it subject to all its obligations and liabilities.The State in other words does not take the property (at SCC p.113, para 12) “as a rival or preferential heir of the deceased butas the lord paramount of the whole soil of the country”, as held in AB

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AState of Punjab v. Balwant Singh[61]. This principle fromHalsbury’s Laws of England[62] was adopted by this Court whileexplaining the ambit of Section 29. Section 29 comes into operationonly on there being a failure of heirs. Failure means a total absenceof any heir to the person dying intestate. When a question ofescheat arises, the onus rests heavily on the person who assertsBthe absence of an heir qualified to succeed to the estate of theindividual who has died intestate to establish the case. The lawdoes not readily accept such a consequence. In State of Bihar v.Radha Krishna Singh[63], a Bench of three Judges of this Courtformulated the principle in the following observations:

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“272. It is well settled that when a claim of escheat is putforward by the Government the onus lies heavily on theappellant to prove the absence of any heir of the respondentanywhere in the world. Normally, the court frowns on the estatebeing taken by escheat unless the essential conditions forescheat are fully and completely satisfied. Further, before the D

plea of escheat can be entertained, there must be a publicnotice given by the Government so that if there is any claimantanywhere in the country or for that matter in the world, hemay come forward to contest the claim of the State. In theinstant case, the States of Bihar and Uttar Pradesh merelysatisfied themselves by appearing to oppose the claims of therespondent-plaintiffs. Even if they succeed in showing that theplaintiffs were not the nearest reversioners of the late Maharaja,it does not follow as a logical corollary that the failure of theplaintiffs’ claim would lead to the irresistible inference thatthere is no other heir who could at any time come forward toclaim the properties.”

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22. In Rambir Das v. Kalyan Das[64] a Bench of two learnedJudges of this Court dealt with a case of shebaitship. Citing theauthority of Justice B.K. Mukherjea’s celebrated Tagore LawLectures with approval, this Court took note of the position of law G

61 1992 Supp (3) SCC 10862 4th Edn., Vol.17, Para 143963 (1983) 3 SCC 118H64 (1997) 4 SCC 102

SRI MARTHANDA VARMA (D) THR. LRS. & ANR. v.STATE OF KERALA & ORS. [UDAY UMESH LALIT, J.]

elucidated in the lectures: (Rambir Das case[64], SCC p. 105,para 3)

“3. … ‘As shebaitship is property, it devolves like anyother property according to the ordinary Hindu law ofinheritance. If it remains in the founder, it follows the line offounder’s heirs; if it is disposed of absolutely in favour of agrantee, it devolves upon the heirs of the latter in the ordinaryway and if for any reason the line appointed by the donor failsaltogether, Shebaitship reverts to the family of the founder.’”

On the question of escheat, B.K. Mukherjea, J. observes thus:(SCC p. 106, para 3)

“3. … ‘As there is always an ultimate reversion to thefounder or his heirs, in case the line of shebaits is extinct, strictlyspeaking no question of escheat arises so far as the devolutionof shebaitship is concerned. But cases may be imagined wherethe founder also has left no heirs, and in such cases thefounder’s properties may escheat to the State together withthe endowed property. In circumstances like these, the rightsof the State would possibly be the same as those of the founderhimself, and it would be for it to appoint a shebait for the debutterproperty. It cannot be said that the State receiving a dedicatedproperty by escheat can put an end to the trust and treat it assecular property.’”

In other words, even in a situation where a founder or his line ofheirs is extinct, and the properties escheat to the State, the Statewhich receives a dedicated property is subject to the trust andcannot treat it in the manner of a secular property. In fact, wemay note, Section 29 expressly stipulates that the State “shalltake the property subject to all the obligations and liabilitiesto which an heir would have been subject”.

23. In deciding this case, this Court must also bear in mind thesettled principle that unless the founder of a math or religiousinstitution has laid down the principle governing succession to theendowment, succession is regulated by the custom or usage ofthe institution. This principle was enunciated over six decadesago by this Court in Sital Das v. Sant Ram[43], rendered by B.K.Mukherjea, J., speaking for a Bench of four Judges: (AIR p. 609,para 9)

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“9. In the appeal before us the contentions raised by theparties primarily centre round the point as to whether after thedeath of Kishore Das, the plaintiff or Defendant 3 acquiredthe rights of Mahant in regard to the Thakardwara in dispute.The law is well settled that succession to Mahantship of aMath or religious institution is regulated by custom or usage ofthe particular institution, except where a rule of succession islaid down by the founder himself who created the endowment.As the Judicial Committee laid down [Vide Genda Puri v.Chatar Puri[44], IA at p. 105] in one of the many cases on thispoint: (SCC OnLine PC)

‘… In determining who is entitled to succeed as Mohunt,the only law to be observed is to be found in the customand practice, which must be proved by testimony, and theclaimant must show that he is entitled according to the customto recover the office and the land and property belonging toit.’

Mere infirmity of the title of the defendant, who is in possession,will not help the plaintiff.”

… … …

25. The principle that the law does not readily accept a claim toescheat and that the onus rests heavily on the person who assertsthat an individual has died intestate, leaving no legal heir, qualifiedto succeed to the property, is founded on a sound rationale. Escheatis a doctrine which recognises the State as a paramount sovereignin whom property would vest only upon a clear and establishedcase of a failure of heirs. This principle is based on the norm thatin a society governed by the Rule of Law, the court will not presumethat private titles are overridden in favour of the State, in theabsence of a clear case being made out on the basis of a governingstatutory provision. To allow administrative authorities of theState—including the Collector, as in the present case—to adjudicateupon matters of title involving civil disputes would be destructiveof the Rule of Law. The Collector is an officer of the State. Hecan exercise only such powers as the law specifically confersupon him to enter upon private disputes. In contrast, a civil courthas the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away,either expressly or by necessary implication, by statute. In holdingthat the Collector acted without jurisdiction in the present case, itis not necessary for the Court to go as far as to validate the titlewhich is claimed by the petitioner to the property. The Court isnot called upon to decide whether the possession claimed by theTrust of over forty-five years is backed by a credible title. Theessential point is that such an adjudicatory function could not havebeen arrogated to himself by the Collector. Adjudication on titlesmust follow recourse to the ordinary civil jurisdiction of a court ofcompetent jurisdiction under Section 9 of the Code of CivilProcedure, 1908.”

107. In the circumstances, we hold that the death of Sree ChithiraThirunal Balarama Varma who had signed the Covenant, would not inany way affect the Shebaitship of the Temple held by the royal family ofTravancore; that after such death, the Shebaitship must devolve inaccordance with the applicable law and custom upon his successor; thatthe expression “Ruler of Travancore” as appearing in Chapter III ofPart I of the TC Act must include his natural successors according tolaw and custom; and that the Shebaitship did not lapse in favour of theState by principle of escheat.

108. We must now deal with two decisions on which reliance wasplaced by Mr. Suresh, learned counsel for respondent Nos.3, 4 and 6 inappeal arising from Special Leave Petition (Civil) No.12361 of 2011.

A) In Bala Shankar Maha Shanker Bhattjee and Others vs.Charity Commissioner, Gujarat State[23 ]the basic issue was whetherKalika Mataji Temple was a public Trust. The High Court found, interalia, that by Sanad No.19, Scindias in their capacity as sovereign Rulershad passed on their obligations in respect of the temple to the BritishGovernment by a treaty concluded between them in 1860. Afterconsidering various decisions on the point, the principles were noted bythis Court as under: - “19. A place in order to be a temple, must be a place for publicreligious worship used as such place and must be either dedicatedto the community at large or any section thereof as a place ofpublic religious worship. The distinction between a private templeand public temple is now well settled. In the case of former thebeneficiaries are specific individuals; in the latter they are AB

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indeterminate or fluctuating general public or a class thereof. Burdenof proof would mean that a party has to prove an allegation beforehe is entitled to a judgment in his favour. The one or the other ofthe contending parties has to introduce evidence on a contestedissue. The question of onus is material only where the party onwhich it is placed would eventually lose if he failed to dischargethe same. Where, however, parties joined the issue, led evidence,such evidence can be weighed in order to determine the issue.The question of burden becomes academic.

20. An idol is a juristic person capable of holding property. Theproperty endowed to it vests in it but the idol has no beneficialinterest in the endowment. The beneficiaries are the worshippers.Dedication may be made orally or can be inferred from the conductor from a given set of facts and circumstances. There need notbe a document to evidence dedication to the public. Theconsciousness of the manager of the temple or the devotees as tothe public character of the temple; gift of properties by the publicor grant by the ruler or Government; and long use by the public asof right to worship in the temple are relevant facts drawing apresumption strongly in favour of the view that the temple is apublic temple. The true character of the temple may be decidedby taking into consideration diverse circumstances. Though themanagement of a temple by the members of the family for a longtime, is a factor in favour of the view that the temple is a privatetemple, it is not conclusive. It requires to be considered in the lightof other facts or circumstances. Internal management of thetemple is a mode of orderly discipline or the devotees are allowedto enter into the temple to worship at particular time or after someduration or after the headman leaves the temple are not conclusive.The nature of the temple and its location are also relevant facts.The right of the public to worship in the temple is a matter ofinference.

21. Dedication to the public may be proved by evidence orcircumstances obtainable in given facts and circumstances. Ingiven set of facts, it is not possible to prove actual dedicationwhich may be inferred on the proved facts that place of publicreligious worship has been used as of right by the general publicor a section thereof as such place without let or hindrance. In a

public debuttar or endowment, the dedication is for the use orbenefit of the public. But in a private endowment when propertyis set apart for the worship of the family idol, the public are notinterested. The mere fact that the management has been in thehands of the members of the family itself is not a circumstance toconclude that the temple is a private trust. In a given casemanagement by the members of the family may give rise to aninference that the temple is impressed with the character of aprivate temple and assumes importance in the absence of anexpress dedication through a document. As stated earlier,consciousness of the manager or the devotees in the user by thepublic must be as of right. If the general public have always madeuse of the temple for the public worship and devotion in the sameway as they do in other temples, it is a strong circumstance infavour of the conclusiveness of public temple. The origin of thetemple, when lost in antiquity, it is difficult to prove dedication topublic worship. It must be inferred only from the proved facts andcircumstances of a given case. No set of general principles couldbe laid.”

This decision lays down the parameters for testing whether aparticular temple is a private temple, or a public temple, and reiteratesthat though the property endowed to it vests in the idol, it has no beneficialinterest in it and that the beneficiaries are worshippers. It alsoacknowledges that in a given case the management of the temple maybe by the members of a family.

The conclusions drawn by us in the present case, are not in anyway inconsistent with this decision and the accepted premise in the presentcase is that the Temple is a public temple.

B) In Deep Chand vs. The State of Uttar Pradesh and Others[22],the questions that arose for consideration were concerning the validityof a scheme framed by the State pursuant to the provisions of the MotorVehicle Act, 1939. Thereafter, Parliament enacted the Motor Vehicle(Amendment) Act, 1956, which inserted Chapter IVA into the principalAct. The matter was tested on the principles of repugnancy as also onthe anvil of Article 13 of the Constitution. The decision in Deep Chand(supra) thus has no application to the present controversy.

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109. Having considered the nature of Shebatiship of the Templeand the effect of developments such as the Constitution (Twenty SixthAmendment) Act, 1971 and the death of the Ruler who has signed theCovenant, we now turn to the other issues projected by the learnedcounsel for various parties.

BI] Bar under Article 363 of the Constitution of India

i) In para 77 of his opinion in Madhav Rao Jivaji Rao Scindia[12],Hidayatullah, C.J., had observed that insofar as the guarantees that hadfound place in legislative measures, the provisions of Article 362 neednot be invoked and the dispute could be decided on the basis of theCStatutes which were enacted having due regard to the contents of theCovenant, and that such a case would not attract Article 362. To similareffect are the observations made by the Majority Judgment in thatdecision in the portions quoted hereinabove. The matter was put beyondany doubt in para 60 of the leading judgment in RaghunathraoGanpatrao[14] where the ratio in Madhav Rao Jivaji Rao Scindia[12]Dwas dealt with, and it was held that the jurisdiction of the Courts wouldnot get excluded where relief was found in a statutory provision enactedin terms of Article 362 of the Constitution. The tenor of the Suits as filedwas to agitate that the expression “Ruler of Travancore” appearing inChapter III of Part I of the TC Act ought to be construed in the mannerEsuggested by the plaintiffs. The relief was thus founded on theinterpretation suggested by the plaintiffs and therefore would not comewithin the bar engrafted in Article 363 of the Constitution. The decisionsof this Court in Madhav Rao Jivaji Rao Scindia[12 ]as well as inRaghunathrao Ganpatrao[14 ]have clearly ruled out the applicability ofany such bar.F

ii) As observed in the judgments of Hidayatullah, C.J., and themajority judgment as well as in the opinion of Hegde, J., in order to getthe bar under Article 363 attracted, the dispute must fall under either oftwo limbs of Article 363. Under the first limb the dispute must arise outof the provisions of the Covenant, whereas under the second limb theGdispute must be with respect to the right arising out of a provision of theConstitution relating to the Covenant.

The dispute raised in the Suits in the present case, which weresought to be transferred to the High Court, had questioned the authorityof the appellant No.1 only from the stand point of the expression “RulerHof Travancore” appearing in Chapter III of Part I of the TC Act, and would not get covered under either of the limbs of Article 363 of theConstitution.

iii) The reliance placed on the decision of this Court in ColonelHis Highness Sawai Tej Singhji of Alwar vs. Union of India andanr.[16 ]was thus completely misplaced. In that case, the Suit was filed bythe Ruler of Alwar praying that three properties namely the SecretariatBuilding, Daulat Khana building and Indra Viman Station be declared asprivate properties of said Ruler and that State of Rajasthan be ejectedfrom those properties or in the alternative be directed to pay rent to saidRuler. The issue was whether those three properties were accepted tobe private properties of the Ruler. Since the Suit directly related to thescope of the description of the property in the concerned documentspertaining to accession, in view of the bar under Article 363 of theConstitution, the Suits were found to be not maintainable. A submissionwas advanced before this Court that in the “parent” Covenant the propertywas described to be the private property of the Ruler, and subsequentcommunications including the one dated 14.09.1949, would not operateas a bar under Article 363 of the Constitution. In this backdrop the matterwas dealt with by this Court as under:-

“20. Another contention raised by Mr Sharma was that even ifthe letter dated September 14, 1949 was held to evidence anagreement, it was not hit by the provisions of Article 363 of theConstitution inasmuch as it was an agreement resulting from theRajasthan Covenant which alone, according to him, was theagreement covered by the article. This contention is also withoutsubstance. Article 363 of the Constitution bars the jurisdiction ofall courts in any disputes arising out of any agreement which wasentered into or executed before the commencement of theConstitution by any ruler of an Indian State to which theGovernment of India was a party. The operation of the article isnot limited to any “Parent” covenant and every agreement whetherit is primary or one entered into in pursuance of the provisions ofa preceding agreement would fall within the ambit of the article.Thus the fact that the agreement contained in the letter datedSeptember 14, 1949 had resulted from action taken under theprovisions of the Rajasthan Covenant, is no answer to the plearaised on behalf of the respondents that Article 363 of theConstitution is a bar to the maintainability of the two suits, althoughwe may add, that the agreement did not flow directly from the AB

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ARajasthan Covenant but was entered into by ignoring and departingfrom the provisions of clause (2) of Article XII thereof.”

iv) In the circumstances, we accept the submissions made onbehalf of the State, as well as the concerned respondents, and hold thatthe bar under Article 363 of the Constitution of India would not getBattracted in the present matter, and that the submissions in that behalfadvanced on behalf of the appellants as well as the intervenors supportingthem deserve to be rejected.

II] Submissions on the basis of Articles 25(1) and 26(b) ofthe Constitution C

i) The submissions advanced by Mr. Deepak, learned Advocatefor the Intervenors in this connection have been noted out in para 42hereinabove. However, no such submissions were either advanced beforethe High Court, or in this Court, on behalf of the appellants. No factualfoundation was also laid either before the High Court or in the form ofDpleadings by the appellants before this Court.

ii) In the absence of pleadings and requisite issues having beenraised by the competing claimants, it would be extremely difficult toenter into said issues so raised by Mr. Deepak, learned Advocate andconsider whether the role played by the Royal Family as descendants ofEMaharaja Aditya and as “Padmanabhadasa” is essential and integral tothe very foundation and identity of the Temple. Similarly, the questionwhether “Parashurama Padhati” being practiced has a distinct identityof its own action would also require complete elaboration and assessmentof facts.

Fiii) We therefore accept the submissions of Mr. Gupta, learnedSenior Advocate for the State that in the absence of any claim beingraised in a properly instituted proceedings by an identifiable religiousdenomination, there would be no question of adjudicating or giving afinding regarding violation of any rights under Articles 25 and 26 of theConstitution, and that there would be no occasion to enter into the questionGwhether or not the Temple is of a denominational character as projected,or that the relationship between the “Ruler of Travancore” and the Templecould be said to be an essential or integral part of the Hindu religion ingeneral.

iv) In the circumstances we refuse to enter into the questionsraised by Mr. Deepak, learned Advocate for the Intervenors in theseproceedings.

110. The legal issues having been dealt with, we must now considerwhat should be the “way forward”. After the decision of the High Court,various orders were passed by this Court, committees were formed andinspections were undertaken. Inventorization has taken place with respectto most of the Kallaras, the antiques and artifacts of the Temple havebeen digitized, and for the last more than 9 years various steps havebeen taken under the directions of this Court by all the authorities. TheState has also expended considerable amounts as stated in the tabularchart referred to in para 44 hereinabove.

i) Consistent with the stand that the Temple is a public Templeand that no remuneration at any stage was derived in the past or wouldbe aimed at in future, a suggestion was made on behalf of the appellantsin the form of a Note in response to the affidavit in reply filed on behalfof the State. In the said Note, which is set out in detail in Paragraph 47hereinabove, the appellants have suggested the composition of anAdministrative Committee, and of an Advisory Committee. Broadly, it issuggested that the Administrative Committee be formed comprising offive Members, the Chairperson being a retired Indian AdministrativeService Officer of the rank of Secretary to Government of Kerala; theother four members being (i) a nominee of the Trustee; (ii) the ChiefThantri of the Temple; (iii) a nominee of the Government of Kerala; and(iv) a Member to be nominated by the Ministry of Culture, Governmentof India. In terms of para 8 of the Note, the Trustee that is to say theManager or Shebait of the Temple would be guided by the advice givenby the Advisory Committee.

ii) On the other hand, the suggestion made on behalf of the Stateis to follow the model statutorily enacted for Guruvayoor Devaswom,and thus the Managing Committee would be of eight Members comprisingof two ex-officio members, namely, Padmanabhadasa and the SeniorThantri; while the other six Members would be nominated by the Hindusamong the Council of Ministers; one of them being Member of theScheduled Castes and Scheduled Tribes while one being a woman, andthe other being a representative of the employees of the Temple.

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A111. It may be noted here that the following Committees wereconstituted from time to time by this Court.

A)By Order dated 02.05.2011, two observers were appointedfor the purposes of inventorization.

B)By Order dated 21.07.2011, an Expert Committee wasBappointed for the purposes of Inventory, Conservation andSecurity.

By same order, Overseeing Committee was also appointedto supervise and guide the working of the Expert Committee.

CC)The Order dated 13.02.2013 refers to the Temple Committeein terms of Section 20 of the TC Act to advise the Ruler ofTravancore.

D)By Order dated 11.12.2013, Conservation and RestorationCommittee was appointed for Structural Renovation andRestoration.D

E)Since the Executive Officer proceeded on leave, an InterimAdministrative Committee was appointed vide Order dated24.04.2014 for day to day functions relating to the Temple.

F)By Orders dated 09.05.2017 and 04.07.2017, apart fromEreconstituting the Conservation Committee, a SelectionCommittee for Sreekovil was also appointed to select thesuitable person having requisite knowledge.

These Committees were constituted at the interim stage of theproceedings in this Court.F112. We may, at this stage, also refer to some of the Reportssubmitted by the Administrative Committee appointed by this Court:-

i) In the Report dated 05.01.2018, it was reported that takingadvantage of the fact that an ad hoc committee was at thehelm of the affairs of the Temple, some of the occupants ofGthe structures on East Nada, North Gate and Utsava MadomBuilding continued to be or were in illegal and unauthorizedoccupation and that requisite action to resume the possessionof said structures from such occupants ought to be undertaken.

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ii) In the Report dated 01.01.2020, it was stated that from04.01l.2019 to 20.12.2019, the offerings made by the devoteesvisiting the Temple, in the ‘Kanikka’ amounted toRs.5,68,96,260/- (Rupees Five Crores Sixty Eight Lakhs NinetySix Thousand Two Hundred and Sixty Only).

iii) The Report dated 27.05.2020, under the signature of the DistrictJudge, referred to the earlier Resolution dated 13.06.2017 andthe direction issued by this Court in its Order dated 04.07.2017requesting the State to nominate a panel of three officers fromthe Indian Audit and Accounts Service (IA &AS) to overseethe audit and accounts of the Temple and submit quarterlyreports to the Administrative Committee. The Report stated:- “I may also report that the Administrative Committee is perfectlyin the darkness regarding the financial position and accounts ofthe Temple. Different District Judges discharged duties asChairmen of the Administrative Committee during different periodssince the inception of the Committee as per the directions of theHon’ble Supreme Court. So far, the respective Executive Officers,in charge of the financial matters of the Temple, have not producedeither the budget proposals or the statement of accounts beforethe Administrative Committee.

The Executive Officer informed me that as the PrincipalAccountant General raised queries on the remuneration of theserving IAAS Officers and the State Government was not in aposition to meet the expenses, the direction of the Hon’ble SupremeCourt could not be complied with. Subsequently, on 18.09.2017,the Administrative Committee resolved the following:- ‘(i)The service of an IA & AS Officer is required to overseethe audit conducted by the Internal Auditor and StatutoryAuditor.

(ii) The service of a serving IA & AS Officer is required onforeign service terms.

(iii) In addition, the services of two non IA & AS Officers,who are in service, is also required on foreign serviceterms to assist the IA & AS Officer.’

A

B

C

D

E

F

G

H

AThe Committee also authorized the Executive Officer to take upthe matter with the Government and to bring the developments tothe notice of the Hon’ble Supreme Court.

So far, the directions of the Hon’ble Supreme Court to appoint anIA & AS Officer to oversee the internal audit and statutory auditBhas not been complied with. Still the Committee is in darkness onthe financial position and accounts of the Temple.”

113. The provisions of the TC Act with respect to the administrationof the Temple are clear:-

a) Under Section 18(2), the administration shall be conducted.C“Subject to the control and supervision of the Ruler of Travancore, by anExecutive Officer appointed by him.”

b) “Sree Padmanabhaswamy Temple Committee” composed ofthree members nominated by the Ruler of Travancore in terms of Section20 is to advise the Ruler of Travancore in the discharge of his functions.DThe Statute has thus vested the power of appointing the ExecutiveOfficer and of forming the Advisory Committee, in the Ruler ofTravancore.

In the Note, the appellants have stated:- E(i)“The Trustee shall delegate his powers of administration underSection 18(2)” to the Administrative Committee which “shalladminister the Temple through an Executive Officer to beappointed by the Committee”.

(ii) On all policy matters, the Trustee shall be guided by the adviceFof the Advisory Committee.

114. Having given our anxious consideration to the rival suggestions,the composition of the Committees as suggested by the appellants deservesacceptance, especially in light of the conclusions arrived by us that theManagership or the Shebaitship of the Temple continues with the Family.GAs against the administration contemplated by Chapter III of Part I ofthe TC Act in the hands of the Ruler of Travancore in absolute terms,the course now suggested by the appellants is quite balanced. TheComposition of the Administrative Committee as suggested is broad basedand would not be loaded in favour or against the Trustee. However,considering the fact that the present interim Administrative CommitteeH

headed by the District Judge is in seisin for the last more than five years,and various District Judges as Chairpersons of the Committee conductedthemselves quite well, in our view, a minor change in the AdministrativeCommittee suggested by the appellants in their Note is called for. Insteadof a retired Indian Administrative Service Officer of the rank of Secretaryto the Government of Kerala as the Chairperson of the AdministrativeCommittee, in the interest of justice, the District Judge,Thiruvananthapuram shall be the Chairperson of the AdministrativeCommittee. Needless to say that the present Chairperson of the InterimAdministrative Committee shall continue to be the Chairperson so longas he holds the post of the District Judge, Thiruvananthapuram. Thecomposition of the Advisory Committee will ensure that the administrationof the Temple is conducted in a fair and transparent manner.

115. We, therefore, accept the suggestions made by the appellantsin their Note adverted to in detail in paragraph 47 hereinabove withregard to the constitution of the Administrative Committee and theAdvisory Committee subject to the modification with respect to theChairperson of the Administrative Committee as stated in the precedingparagraph. The appellant No.1 shall file an appropriate affidavit ofundertaking within four weeks of this judgment in terms of paragraph 1of the Note and also agreeing to the modification as stated above. Theaffidavit of undertaking so filed shall be binding on the appellant No.1and all his successors.

Within four weeks of filing of the affidavit of undertaking, boththe Committees shall be constituted and become functional. TheAdministrative Committee shall immediately appoint the ExecutiveOfficer. Upon the constitution of the Administrative Committee, theInterim Administrative Committee appointed in terms of the Order dated24.04.2014 shall cease to operate.

In terms of the Note submitted by the appellants the powers of“the Ruler of Travancore” under Section 18(2) of the TC Act shall standdelegated to the Administrative Committee while the Advisory Committeeshall be deemed to be the Committee constituted in terms of Section 20of the TC Act. It is made clear that all the members including theChairpersons of the Administrative Committee and the AdvisoryCommittee must be Hindus and fulfil the requirements in Section 2(aa)of the TC Act.

AB

C

DE

F

G

H

AAll the other Committees constituted in terms of various orderspassed by this Court shall continue for four months, and it shall be uptothe Advisory Committee to consider whether the services of thoseCommittees are required or not.

It must also be stated that the present security arrangements asBdeployed by the State Government shall be continued, but the expensesin that behalf shall be borne by the Temple hereafter.

116. The Administrative Committee and the Advisory Committeeshall do well to discharge all their functions including performance of theworship of the deity, maintenance of its properties, diligently and in theCbest interest of the Temple, and provide adequate and requisite facilitiesto the worshippers; and more particularly:- (a)Preserve all treasures and properties endowed to SreePadmanabhaswamy and those belonging to the Temple.

(b) Protect all tenanted properties and take appropriate measuresDto ensure reasonable returns from such tenanted properties.

(c) Ensure that all rituals and religious practices are performedin accordance with the instructions and guidance of the ChiefThantri of the Temple and according to custom and traditions.In temporal matters, the Committees shall be guided by theEadvice given by the Chief Thanthri. The designation of theChief Thanthri shall be done in accordance with the customsand traditions.

(d) Shall take appropriate steps to return to the State the amountsexpended by the State Government as catalogued in the ChartFin paragraph No.44 hereinabove.

(e) All the income accruing to the Temple, as well as the offeringsmade by the worshippers, shall be expended in the followingmanner:

(i) To improve the facilities for the worshippers; and G

(ii) For such religious and charitable purposes as the AdvisoryCommittee may deem appropriate; and

(iii) In investments that will fetch reasonable returns andensure that the properties of the Temple are completely safeand secure.

H

(f) Recover and retrieve any property or funds of the Templewhich have been put to misuse or have been in unauthorizedoccupation or misappropriated.

A

(g) Shall order audit for the last 25 years as suggested by thelearned Amicus Curiae. The audit shall be conducted by afirm of reputed Chartered Accountants. The AdvisoryBCommittee shall also consider what further steps need to betaken for the preservation of the Temple properties, bothmovable and immovable.

(h) Take appropriate steps for conservation of the Temple and itsprecincts, as well as for improvement of all the facilities.

C

(i) Shall consider whether Kallara B is to be opened for thepurpose of inventorization. The interim orders dated27.11.2014 and 04.07.2017 passed by this Court had recordedthat Kallara B was not opened, and it was directed thatinventorization with respect to said Kallara B be undertakenonly after obtaining express orders from this Court. We deemit appropriate to leave this issue to the best judgement anddiscretion of the Committees.

D

(j) Conduct all the obligations which from time to time werebestowed on various Committees by this Court including thatof the Selection Committee for Sreekovil.

E

(k) Shall file Reports in this Court by the second week ofDecember, 2020 stating all the developments in brief till then.The next Report shall be filed after the accounts for theyear ending 31.03.2021 are audited.

F

(l) Shall file the audited accounts and the Balance Sheet withthe office of the Accountant General for the State, everyyear.

117. In light of the specific submission made by the appellants, theappellant No.1 and his successors shall not be entitled to draw anyremuneration for his or their services as the Manager or Trustee. TheExecutive Officer appointed by the Administrative Committee shall beentitled to a modest and reasonable remuneration to be fixed by theAdministrative Committee.

G

[2020] 9 S.C.R.

A118. Civil Appeals thus, stand allowed subject to above directions,without any order as to costs.

119. Writ Petition (Civil) No.518 of 2011 was filed seeking followingprincipal relief:

“Give directions to the Government of India and the Reserve BankBof India to evolve and implement a mechanism whereby thetreasures of Sree Padmanabha Swamy Temple can be preservedintact, and at the same time be put to proper and profitable usewithout possibilities of corrupt dealings, erosion and wastage……”

In view of the aforementioned directions, nothing further isCrequired to be done in this Writ Petition. The Writ Petition is accordinglydisposed of.

120. Contempt Petition No.493 of 2019 was filed submitting, interalia, that certain statements were made by the Temple Guard; and thatthe then Executive Officer was protecting said Temple Guard. ConsideringDthe nature of allegations, we see no reason to take cognizance of thesame and the Contempt Petition is dismissed.

121. In the end, we must express our sincere gratitude for theassistance rendered by the learned Amicus Curiae, and also for hisinvaluable suggestions and guidance. We are also grateful to all theEpersons and members of various Committees who diligently dischargedtheir obligations in answer to the suggestions made by this Court fromtime to time.

F

Ankit Gyan

Matters disposed of.

G

H