Whether the assessee is Taxable for the amount he recived under Restrictive covenant ?- No SWC have requested Mr. Shivraj Gupta to give a restrictive covenant to and in favour of SWC for not carrying on directly or indirectly any manufacturing or marketing activities, whatsoever, relating to Indian Made Foreign Liquor (IMFL) or Beer for a period of 10 years from the date hereof which Mr. Gupta has agreed to give for the consideration of a non-competition fee of Rs. 6,60,00,00 (Rupees Six crores and sixty lacs only) to be paid by SWC to Mr. Gupta.”

1
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 12044 OF 2016
SHIV RAJ GUPTA …Appellant
Versus
COMMISSIONER OF INCOME-TAX,
DELHI-IV …Respondent
J U D G M E N T
R.F. Nariman, J.
1. The present appeal relating to assessment year 1995-96 is by one Shri
Shiv Raj Gupta, who was the Chairman and Managing Director of M/s
Central Distillery and Breweries Ltd. (hereinafter referred to as “CDBL”),
which had a unit in Meerut manufacturing beer and Indian Made Foreign
Liquor (hereinafter referred to as “IMFL”). The facts leading to an
appreciation of the issues raised in this appeal are as follows.
2. By a Memorandum of Understanding (hereinafter referred to as “MoU”)
dated 13.04.1994, made between the appellant and three group
companies of M/s Shaw Wallace Company Group (hereinafter referred
to as “SWC group”), the appellant, his wife, son, daughter-in-law and
two daughters were the registered holders of 1,86,109 equity shares of
2
INR 10 each constituting 57.29% of the paid-up equity share capital of
CDBL listed in the Bombay and Delhi Stock Exchanges. The break-up
of the shares held by the family members of the appellant and the
appellant himself are as follows:
Name of the Shareholder Number of Shares held in CDBL
Shiv Raj Gupta (Appellant) 38,999
Jayant Gupta (Appellant’s Son) 44,658
Roopa Gupta (Appellant’s
Daughter-in-law)
53,911
Pushpa Gupta (Appellant’s
Wife)
3,303
Avanti Pandit (Appellant’s
Daughter)
5,541
Arti Kirloskar (Appellant’s
Daughter)
2,760
Total 1,86,109
3. The said MoU recites that the company employed in its factory 350
employees and around 25 staff and other officers in its other offices.
The MoU then refers to a direction of the Supreme Court, which was
made by an Order dated 11.03.1994, which made it clear that the
company’s manufacturing activity at the plant at Meerut was suspended
3
until a secondary effluent treatment plant is installed and made
operative by the company. This led to the sale of this controlling block
of shares, which was sold at the price of INR 30 per share (when the
listed market price of the share was only INR 3 per share). It is stated
in the said MoU that the entire sale consideration of Rs.55,83,270/- has
since been paid by the SWC group to Shri Gupta, as a result of which
Shri Gupta has irrevocably handed over physical possession,
management and control of the said brewery and distillery of CDBL to
a representative of the SWC group on 10.02.1994. Among the things
to be done under the MoU, it was made clear that the nominees of the
SWC group would be put in the saddle i.e. be made directors on or
before 13.04.1994, so that they will constitute an absolute majority on
the board of the company. Importantly, both Shri Shiv Raj Gupta and
his son Shri Jayant Gupta (who, together with his wife, is the major
shareholder of the family) will resign as Chairman and Managing
Director and as Joint Managing Director respectively of CDBL by
13.04.1994. Under Clause 7 of the said MoU, personal guarantees
given by the appellant and his son to UCO Bank, IFCI, ICICI and IREDA
for loans amounting to INR 8.44 crores will be indemnified against all
claims, actions, etc. in respect thereof.
4. By a Deed of Covenant dated 13.04.1994, the MoU signed on the same
day was reiterated, and it was then stated in recitals 3 and 4 as follows:
4
“(3) Over the past years, Mr. Shivraj Gupta has acquired
considerable knowledge, skill, expertise and
specialization in liquor business.
(4) In furtherance of the purchase of the said shares,
SWC have requested Mr. Shivraj Gupta to give a
restrictive covenant to and in favour of SWC for not
carrying on directly or indirectly any manufacturing or
marketing activities, whatsoever, relating to Indian
Made Foreign Liquor (IMFL) or Beer for a period of 10
years from the date hereof which Mr. Gupta has agreed
to give for the consideration of a non-competition fee of
Rs. 6,60,00,00 (Rupees Six crores and sixty lacs only)
to be paid by SWC to Mr. Gupta.”
The Deed of Covenant is a short document containing two clauses,
which are set out as follows:
“1. In consideration of the sum of Rs. 6,00,00,000
(Rupees Six crores only) paid by SWC to Mr. Gupta as
an advance against the aforesaid non-competition fee
of Rs. 6,60,00,000 (the receipt whereof, Mr. Gupta
hereby admits and acknowledges), Mr. Gupta hereby
irrevocably agrees, covenants and undertakes that with
effect from the date of these presents, Mr. Gupta will
not start or engage himself directly or indirectly or
provide any service, assistance or support of any
nature, whatsoever, to or in relation to the
manufacturing, dealing and supplying or marketing of
Indian Made Foreign Liquor (IMFL) and/or Beer. The
balance amount of Rs. 60,00,000 (Rupees sixty lacs
only) will be paid by SWC to Mr. Gupta on 31st October,
1994.
2. This covenant shall remain in full force and effect for
a period of 10 years from the date of these presents and
this covenant will be absolutely and irrevocably binding
on Mr. Gupta.”
5. The bone of contention in this appeal is whether the said Deed of
Covenant can be said to contain a restrictive covenant as a result of
5
which payment is made to the appellant, or whether it is in fact part of a
sham transaction which, in the guise of being a separate Deed of
Covenant, is really in the nature of payment received by the appellant
as compensation for terminating his management of CDBL, in which
case it would be taxable under Section 28(ii)(a) of the Income Tax Act,
1961. Section 28(ii)(a) reads as follows:
“28. Profits and gains of business or profession.
The following income shall be chargeable to income-tax
under the head "Profits and gains of business or
profession", -
xxx xxx xxx
(ii) any compensation or other payment due to or
received by,-
(a) any person, by whatever name called, managing the
whole or substantially the whole of the affairs of an
Indian company, at or in connection with the termination
of his management or the modification of the terms and
conditions relating thereto;”
6. By an order dated 31.03.1998, the Assessing Officer held that despite
the fact that the appellant owned a concern, namely, one M/s Maltings
Ltd., which also manufactured IMFL, being a loss making concern, no
real competition could be envisaged between a giant, namely, the SWC
group and this loss making dwarf, as a result of which the huge amount
paid under the Deed of Covenant cannot be said to be an amount paid
in respect of a restrictive covenant as to non-competition. It was further
held that the son of the appellant was not paid any such non-compete
6
fee or amount despite the fact that he also resigned from his position
as Joint Managing Director. It was also held that this was a lump sum
payment with no reason as to why such a huge amount of INR 6.6
crores was being paid. It was also found that there was no penalty
clause to enforce the performance of obligations under the aforesaid
Deed of Covenant, as a result of which, applying the judgment in
McDowell & Co. Ltd. v. CTO (1985) 3 SCC 230, the Deed of Covenant
was held to be a colourable device to evade tax that is payable under
Section 28(ii)(a) of the Income Tax Act, 1961. As a result thereof, this
amount was then brought to tax under the aforesaid provision.
7. An appeal from the Assessing Officer to the learned Commissioner of
Income Tax (Appeals) was dismissed. When it came before the Income
Tax Appellate Tribunal (hereinafter referred to as “Appellate Tribunal”)
the learned Accountant Member differed with the learned Judicial
Member. The learned Accountant Member held that the two deeds
would have to be read separately and that revenue cannot challenge
the business perception of the assessee. Further, it was held that there
was no colourable device involved, and that, as a result, non-compete
fee payable under the Deed of Covenant was not taxable under Section
28(ii)(a) or any other provision of the Income Tax Act, 1961. The
learned Judicial Member on the other hand substantially agreed with
the Assessing Officer, as a result of which he decided in favour of the
7
revenue. A reference was then made to a third Member, who was also
a Judicial Member. The learned third Member emphasised the fact that
a share worth INR 3 was sold for INR 30 under the MoU as a result of
transfer of control of the CDBL. It cannot be said that these shares have
been undervalued, neither can it be said that there was any collusion
or other sham transaction, as a result of which the amount of INR 6.6
crores has escaped income tax. He pointed out that by a letter dated
02.04.1994, a “penalty clause” was provided for in that, out of the
amount received by the assessee an amount of INR 3 crore was to be
deposited with the SWC group for two years under a public deposit
scheme, it being made clear that in case there is any breach of the
terms of the MoU resulting in loss, the amount of such loss will be
deducted from this deposit. The result, therefore, was that the appeal
stood allowed by a majority of 2:1 in the Appellate Tribunal.
8. The revenue preferred an appeal under Section 260-A of the Income
Tax Act, 1961 to the High Court. In its grounds of appeal, the revenue
framed the substantial questions of law that arose in the matter as
follows:
“A) Whether the ITAT has correctly interpreted the
provisions of Section 28(ii) of the Income Tax Act,
1961?
B) Whether the Ld. ITAT was correct in holding that
receipt of Rs.6.6 crores by the respondent/assessee as
non-competitive fee was a capital receipt u/s 28(iv)
8
income tax act and not a revenue receipt as envisaged
in Section 28(ii) of I.T. Act?
C) Whether the Ld. ITAT failed to distinguish between
nature of capital and nature of benefit in commercial
sense in respect of amount of Rs. 6.6 crores received
in view of restrictive covenant of deed dated
13.04.1994?
D) Whether Ld. Judicial Member of ITAT was correct in
recording his difference of opinion that receipt of Rs.
6.6 crores by respondent/assessee was actually a
colourable exercise to evade tax and same was held to
be taxable under Section 28(ii) of the Income Tax Act?”
9. By the impugned judgment of the Division Bench of the Delhi High Court
dated 22.12.2014, the Division Bench framed the following substantial
question of law:
“Whether, on the facts and in the circumstances of the
case, the amount of Rs. 6.6 crores received by the
assessee from SWC is on account of handing over
management and control of CDBL (which were earlier
under the management and control of the assessee) to
SWC as terminal benefit and is taxable u/s 28(ii) of the
Income-tax Act or same is exempt as capital receipt
being non-competition fee by executing deed of
covenant”
After going through the MoU and the Deed of Covenant, both dated
13.04.1994, and copiously referring to the order of the Assessing Officer
dated 31.03.1998, the High Court agreed with the Assessing Officer and
the first Judicial Member of the Appellate Tribunal, stating that the Deed
of Covenant could not be read as a separate document and was not in
its real avatar a non-compete fee at all. However, in its ultimate
conclusion, disagreeing with the learned Assessing Officer and the
9
minority judgment of the Tribunal, the High Court went on to state that
the said sum of INR 6.6 crores could not be brought to tax under Section
28(ii)(a), but would have to be treated as a taxable capital gain in the
hands of the appellant, being part of the full value of the sale
consideration paid for transfer of shares.
10.Shri Arvind Datar and Shri Ajay Vohra, learned senior advocates
appearing on behalf of the appellant, have taken us through the orders
of the Income Tax Authorities, the Appellate Tribunal and the impugned
judgment of the High Court. They raised as a preliminary submission
the fact that under Section 260-A, it is only the substantial question of
law that is framed that can be answered and no other. If some other
question is to be answered, the Court must first give notice of the same
to both sides, hear them, pronounce a reasoned order and thereafter
frame another substantial question of law, which it may then answer.
This procedure has not been followed in the present case as it is clear
that the substantial question of law framed did not contain within it the
question as to whether the assessee can be taxed outside the
provisions of Section 28(ii)(a). The entire judgment is, therefore, vitiated
and must be set aside on this ground alone. They relied on several
judgments to buttress this contention. They then relied upon the
judgment of the learned Accountant Member and of the third Member in
favour of the assessee and the reasoning therein, which according to
10
them is unexceptionable and should have been followed by the High
Court. They also cited judgments to show that prior to 01.04.2003, i.e.
before the introduction of Section 28(va) by Finance Act 20 of 2002 with
effect from the aforesaid date, any sum received under an agreement
for not carrying out any activity in relation to any business was taxed,
for the first time, under this provision and the provision not being
retrospective would not apply to the facts of the present case.
11.Shri Arijit Prasad, learned senior advocate appearing on behalf of the
revenue, read the order of the Assessing Officer and the order of the
first learned Judicial Member and adopted the reasoning contained
therein. According to him, the High Court judgment correctly applied
both McDowell (supra) and Vodafone International Holdings BV v.
Union of India (2012) 6 SCC 613 to arrive at the result which it arrived
at as it was clear that the amount of INR 6.6 crores that was received
by the assessee was really in the nature of payment for the sale of
shares. He also argued as an alternative that in any event it would fall
under Section 28 (ii)(a) as was correctly held by the learned Assessing
Officer and the minority judgment of the Appellate Tribunal.
12.Having heard learned counsel for both parties, we are of the view that
the appeal needs to succeed first on the preliminary ground raised by
the learned counsel for the appellant. Section 260-A of the Income Tax
Act, 1961 reads as follows:
11
“260-A. Appeal to High Court.
(1) An appeal shall lie to the High Court from every
order passed in appeal by the Appellate Tribunal
before the date of establishment of the National Tax
Tribunal, if the High Court is satisfied that the case
involves a substantial question of law.
(2) The Principal Chief Commissioner or Chief
Commissioner or the Principal Commissioner or
Commissioner or an assessee aggrieved by any order
passed by the Appellate Tribunal may file an appeal to
the High Court and such appeal under this sub-section
shall be—
(a) filed within one hundred and twenty days from the
date on which the order appealed against is received
by the assessee or the Principal Chief Commissioner
or Chief Commissioner or Principal Commissioner or
Commissioner;
(b) [***]
(c) in the form of a memorandum of appeal precisely
stating therein the substantial question of law involved.
(2A) The High Court may admit an appeal after the
expiry of the period of one hundred and twenty days
referred to in clause (a) of sub-section (2), if it is
satisfied that there was sufficient cause for not filing
the same within that period.
(3) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall
formulate that question.
(4) The appeal shall be heard only on the question so
formulated, and the respondents shall, at the hearing
of the appeal, be allowed to argue that the case does
not involve such question :
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the court
to hear, for reasons to be recorded, the appeal on any
other substantial question of law not formulated by it,
if it is satisfied that the case involves such question.
12
(5) The High Court shall decide the question of law so
formulated and deliver such judgment thereon
containing the grounds on which such decision is
founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which—
(a) has not been determined by the Appellate Tribunal;
or
(b) has been wrongly determined by the Appellate
Tribunal, by reason of a decision on such question of
law as is referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the
provisions of the Code of Civil Procedure, 1908 (5 of
1908), relating to appeals to the High Court shall, as
far as may be, apply in the case of appeals under this
section.”
This provision, being modelled on a similar provision that is contained
in Section 100 of the Code of Civil Procedure, makes it clear that the
High Court’s jurisdiction depends upon a substantial question of law
being involved in the appeal before it. First and foremost, it shall
formulate that question and on the question so formulated, the High
Court may then pronounce judgement, either by answering the question
in the affirmative or negative or by stating that the case at hand does
not involve any such question. If the High Court wishes to hear the
appeal on any other substantial question of law not formulated by it, it
may, for reasons to be recorded, formulate and hear such questions if it
is satisfied that the case involves such question – See section 260-A
(4). Under sub-section (6), the High Court may also determine any issue
which, though raised, has not been determined by the Appellate
13
Tribunal or has been wrongly determined by the Appellate Tribunal by
reason of a decision on a substantial question of law raised.
13.In Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC
438, this Court referred to Section 100 of the Code of Civil Procedure
and then stated:
“10. We would only add that (a) it is the duty cast upon
the High Court to formulate the substantial question of
law involved in the case even at the initial stage; and (b)
that in (exceptional) cases, at a later point of time, when
the Court exercises its jurisdiction under the proviso to
sub-section (5) of Section 100 CPC in formulating the
substantial question of law, the opposite party should
be put on notice thereon and should be given a fair or
proper opportunity to meet the point. Proceeding to hear
the appeal without formulating the substantial question
of law involved in the appeal is illegal and is an
abnegation or abdication of the duty cast on court; and
even after the formulation of the substantial question of
law, if a fair or proper opportunity is not afforded to the
opposite side, it will amount to denial of natural justice.
The above parameters within which the High Court has
to exercise its jurisdiction under Section 100 CPC
should always be borne in mind. We are sorry to state
that the above aspects are seldom borne in mind in
many cases and second appeals are entertained and/or
disposed of, without conforming to the above
discipline.”
This statement of the law was followed in Dnyanoba Bhaurao
Shemade v. Maroti Bhaurao Marnor (1999) 2 SCC 471 (See
paragraph 10). A recent decision of this Court in Biswanath Ghosh v.
Gobinda Ghosh (2014) 11 SCC 605 has reiterated these principles in
paragraph 16 as follows:
14
“16. Section 100 of the Code lays down the provision
with regard to the second appeal which reads as under:
“100.Second appeal.—(1) Save as otherwise expressly
provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High
Court from every decree passed in appeal by any court
subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of
law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of
appeal shall precisely state the substantial question of
law involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall formulate
that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of
the appeal, be allowed to argue that the case does not
involve such question:
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the Court
to hear, for reasons to be recorded, the appeal on any
other substantial question of law, not formulated by it, if
it is satisfied that the case involves such question.”
From a bare reading of the aforesaid provision it is
manifestly clear that an appeal shall lie to the High
Court from an appellate decree only if the High Court is
satisfied that the case involves a substantial question of
law. It further mandates that the memorandum of
appeal precisely states the substantial question of law
involved in the appeal. If such an appeal is filed, the
High Court while admitting or entertaining the appeal
must record its satisfaction and formulate the
substantial question of law involved in the appeal. The
appeal shall then be heard on the questions so
formulated and the respondent shall be allowed to
argue only on those substantial questions of law.
15
However, proviso to this section empowers the court to
hear on any substantial question of law not formulated
after recording reasons”
14.It can be seen that the substantial question of law that was raised by the
High Court did not contain any question as to whether the non-compete
fee could be taxed under any provision other than Section 28(ii)(a) of
the Income Tax Act, 1961. Without giving an opportunity to the parties
followed by reasons for framing any other substantial question of law as
to the taxability of such amount as a capital receipt in the hands of the
assessee, the High Court answered the substantial question of law
raised as follows:
“63. In view of the aforesaid discussion, we deem it
appropriate and proper to treat Rs. 6.60 crores as
consideration paid for sale of shares, rather than a
payment under Section 28(ii)(a) of the Act.
xxx xxx xxx
65. The substantial question of law is accordingly
answered in favour of the appellant-Revenue and
against the respondent-assessee but holding that
Rs.6.60 crores was taxable as capital gains in the
hands of the respondent-assessee being a part of the
full value sale consideration paid for transfer of shares.
The appellant-Revenue will be entitled to costs as per
the Delhi High Court Rules.”
Clearly, without any recorded reasons and without framing any
substantial question of law on whether the said amount could be taxed
under any other provision of the Income Tax Act, the High Court went
ahead and held that the amount of INR 6.6 crores received by the
assessee was received as part of the full value of sale consideration
16
paid for transfer of shares – and not for handing over management and
control of CDBL and is consequently not taxable under Section 28(ii)(a)
of the Income Tax Act. Nor is it exempt as a capital receipt being noncompete fee, as it is taxable as a capital gain in the hands of the
respondent-assessee as part of the full value of sale consideration paid
for transfer of shares. This finding would clearly be in the teeth of
Section 260-A (4), requiring the judgment to be set aside on this score.
15.Coming to the merits, the High Court found:
“22. …No doubt, market price of each share was only
Rs.3/- per share and the purchase price under the
MOU was Rs.30/-, but the total consideration received
was merely about Rs.56 lacs. What was allegedly paid
as non-compete fee was ten times more, i.e. Rs.6.60
crores. The figure per se does not appear to be a
realistic payment made on account of non-compete
fee, dehors and without reference to sale of shares,
loss of management and control of CDBL. The
assessee had attributed an astronomical sum as
payment toward non-compete fee, unconnected with
the sale of shares and hence not taxable. Noticeably,
the price received for sale of shares, it is accepted was
taxable as capital gain. The contention that quoted
price of each share was mere Rs. 3 only, viz. price as
declared of Rs. 30/- is fallacious and off beam. The
argument of the assessee suffers from a basic and
fundamental flaw which is conspicuous and evident.”
This finding flies in the face of settled law. A catena of judgments has
held that commercial expediency has to be adjudged from the point of
view of the assessee and that the Income Tax Department cannot enter
into the thicket of reasonableness of amounts paid by the assessee.
17
This Court in CIT v. Walchand & Co. (1967) 3 SCR 214 stated as
follows:
“It is open to the Tribunal to come to a conclusion either
that the alleged payment is not real or that it is not
incurred by the assessee in the character of a trader or
that it is not laid out wholly and exclusively for the
purpose of the business of the assessee and to disallow
it. But it is not the function of the Tribunal to determine
the remuneration which in their view should be paid to
in employee of the assessee. When a claim for
allowance under Section 10(2)(xv) of the Income Tax
Act is made, the Income Tax Authorities have to decide
whether the expenditure claimed as an allowance was
incurred voluntarily and on grounds of commercial
expediency. In applying the test of commercial
expediency for determining whether the expenditure
was wholly and exclusively laid out for the purpose of
the business, reasonableness of the expenditure has to
be adjudged from the point of view of the businessman
and not of the Revenue.” [at page 217]
The aforesaid judgment was followed by this Court in J.K. Woollen
Manufacturers v. CIT (1969) 1 SCR 525 where the Court held:
“As pointed out by this Court in CIT v. Walchand & Co.
Private Ltd. [(1967) 65 ITR 381 : (AIR 1967 SC 1435)]
in applying the test of commercial expediency for
determining whether an expenditure was wholly and
exclusively laid out for the purpose of the business,
reasonableness of the expenditure has to be adjudged
from the point of view of the businessman and not of the
Income Tax Department. It is, of course, open to the
Appellate Tribunal to come to a conclusion either that
the alleged payment is not real or that it is not incurred
by the assessee in the character of a trader or it is not
laid out wholly and exclusively for the purpose of the
business of the assessee and to disallow it. But it is not
the function of the Tribunal to determine the
remuneration which in their view should be paid to an
employee of the assessee.” [at page 529-530]
18
This Court in CIT v. Panipat Woollen & General Mills Co. Ltd. (1976)
2 SCC 5 stated as follows:
“6. Before coming to the facts it may be necessary to
mention that there can be no dispute with respect to the
two important propositions:
“(1) that in order to fall within Section 10(2)(xv) of the
Act the deduction claimed must amount to an
expenditure which was laid out or expended wholly and
exclusively for the purpose of the business, profession
or vocation. This will naturally depend upon the facts of
each case,
(2) that in order to determine the question of
reasonableness of the expenditure, the test of
commercial expediency would have to be adjudged
from the point of view of the businessman and not of the
Income tax Department.”
Further, this Court in Shahzada Nand & Sons v. CIT (1977) 3 SCC 432
reiterated this principle as follows:
“4. …But it is well settled that these factors are to be
considered from the point of view of a normal, prudent
businessman. The reasonableness of the payment with
reference to these factors has to be judged not on any
subjective standard of the assessing authority but from
the point of view of commercial expediency… …What
is the requirement of commercial expediency must be
judged not in the light of the 19th Century laissezfaire doctrine which regarded man as an economic
being concerned only to protect and advance his selfinterest but in the context of current socio-economic
thinking which places the general interest of the
community above the personal interest of the individual
and believes that a business or undertaking is the
product of the combined efforts of the employer and the
employees and where there is sufficiently large profit,
after providing for the salary or remuneration of the
employer and the employees and other prior charges
19
such as interest on capital, depreciation, reserves etc.,
a part of it should in all fairness go to the employees.”
Also, this Court in S.A. Builders Ltd. v. CIT (2007) 1 SCC 781 held as
follows:
“36. We agree with the view taken by the Delhi High
Court in CIT v. Dalmia Cement (B) Ltd. [(2002) 254 ITR
377 (Del)] that once it is established that there was
nexus between the expenditure and the purpose of the
business (which need not necessarily be the business
of the assessee itself), the Revenue cannot justifiably
claim to put itself in the armchair of the businessman or
in the position of the Board of Directors and assume the
role to decide how much is reasonable expenditure
having regard to the circumstances of the case. No
businessman can be compelled to maximise its profit.
The Income Tax Authorities must put themselves in the
shoes of the assessee and see how a prudent
businessman would act. The authorities must not look
at the matter from their own viewpoint but that of a
prudent businessman. As already stated above, we
have to see the transfer of the borrowed funds to a
sister concern from the point of view of commercial
expediency and not from the point of view whether the
amount was advanced for earning profits.”
The same principle has also been cited with approval by a recent
judgment of this Court in Hero Cycles (P) Ltd. v. CIT (2015) 16 SCC
359 where the Court held as follows:
“11. Insofar as loans to the sister concern/subsidiary
company are concerned, the law in this behalf is
recapitulated by this Court in S.A. Builders
Ltd. v. CIT [S.A. Builders Ltd. v. CIT, (2007) 1 SCC
781]. After taking note of and discussing on the scope
of commercial expediency, the Court summed up the
legal position in the following manner: (SCC pp. 787-88,
paras 27-31)
20
xxx xxx xxx
31. It has been repeatedly held by this Court that the
expression ‘for the purpose of business’ is wider in
scope than the expression ‘for the purpose of earning
profits’ vide CIT v. Malayalam Plantation
Ltd. [CIT v. Malayalam Plantation Ltd., (1964) 53 ITR
140 (SC)] , CIT v. Birla Cotton Spg. & Wvg. Mills
Ltd. [CIT v. Birla Cotton Spg. & Wvg. Mills Ltd.,
(1971) 3 SCC 344] , etc.”
12. In the process, the Court also agreed that the view
taken by the Delhi High Court in CIT v. Dalmia Cement
(B.) Ltd. [CIT v. Dalmia Cement (B.) Ltd., 2001 SCC
OnLine Del 1447 : (2002) 254 ITR 377] wherein the
High Court had held that (SCC OnLine Del para 8) once
it is established that there is nexus between the
expenditure and the purpose of business (which need
not necessarily be the business of the assessee itself),
the Revenue cannot justifiably claim to put itself in the
arm-chair of the businessman or in the position of the
Board of Directors and assume the role to decide how
much is reasonable expenditure having regard to the
circumstances of the case. It further held that no
businessman can be compelled to maximise his profit
and that the Income Tax Authorities must put
themselves in the shoes of the assessee and see how
a prudent businessman would act. The authorities must
not look at the matter from their own viewpoint but that
of a prudent businessman.”
16.The High Court’s next finding based on the judgment in Vodafone
(supra) is as follows:
“56. In view of the aforesaid discussion and our
findings on the true and real nature of the transaction
camouflaged as ‘non-compete fee‘, we have no
hesitation and reservation that the respondentassessee had indulged in abusive tax avoidance.”
17. We may only reiterate as correctly found by the majority judgments of
the Appellate Tribunal, that:
21
(i) A share of the face value of INR 10 and market value of INR
3 was sold for INR 30 as a result of control premium having to
be paid.
(ii) It is important to note that each member of the family was paid
for his/her shares in the company, the lion’s share being paid
to the assessee’s son and wife as they held the most number
of shares within the said family.
(iii) The non-compete fee of INR 6.6 crores was paid only to the
assessee. This was for the reason stated in the Deed of
Covenant, namely, that Shri Shiv Raj Gupta had acquired
considerable knowledge, skill, expertise and specialisation in
the liquor business. There is no doubt that on facts he has
been Chairman and Managing Director of CDBL for a period
of about 35 years; that he also owned a concern, namely M/s
Maltings Ltd., which manufactured and sold IMFL and beer
and that he was the President of All India Distilleries
Association and H.P. Distilleries Association.
(iv) It is further recorded in the judgment of the Accounting
Member that the amount of INR 6.6 crores was arrived at as
a result of negotiations between the SWC group and the
appellant.
22
(v) That the restrictive covenant for a period of 10 years resulted
in the payment of INR 66 lakhs per year so that the appellant
“…will not start or engage himself, directly or indirectly, or
provide any service, assistance or support of any nature,
whatsoever, to or in relation to the manufacturing, dealing and
supplying or marketing of IMFL and/or Beer.” Given the
personal expertise of the assessee, the perception of the
SWC group was that Shri Gupta could either start a rival
business or engage himself in a rival business, which would
include manufacturing and marketing of IMFL and Beer at
which he was an old hand, having experience of 35 years.
(vi) As was correctly held by the second Judicial Member, it was
also clear that the withholding of INR 3 crores out of INR 6.6
crores for a period of two years by way of a public deposit with
the SWC group for the purpose of deduction of any loss on
account of any breach of the MoU, was akin to a penalty
clause, making it clear thereby that there was no colourable
device involved in having two separate agreements for two
entirely separate and distinct purposes.
18.The reasons given by the learned Assessing Officer and the minority
judgment of the Appellate Tribunal are all reasons which transgress the
23
lines drawn by the judgments cited, which state that the revenue has no
business to second guess commercial or business expediency of what
parties at arms-length decide for each other. For example, stating that
there was no rationale behind the payment of INR 6.6 crores and that
the assessee was not a probable or perceptible threat or competitor to
the SWC group is the perception of the Assessing Officer, which cannot
take the place of business reality from the point of view of the assessee,
as has been pointed out by us hereinabove. The fact that M/s Maltings
Ltd. had incurred a loss in the previous year is again neither here nor
there. It may in future be a direct threat to the SWC group and may turn
around and make profits in future years. Besides, M/s Maltings Ltd. is
only one concern of the assessee – it is the assessee’s expertise in this
field on all counts that was the threat perception of the SWC group which
cannot be second guessed by the revenue. Equally the fact that there
was no penalty clause for violation of the Deed of Covenant, has been
found by us to be incorrect given the letter dated 02.04.1994. The fact
that the respondent-assessee in his letter dated 26.03.1998 in reply to
the show cause notice had stated that the SWC group had gained
substantial commercial advantage by the purchase of shares in CDBL
as the turnover increased from INR 9.79 crores in the accounting period
ending 31.03.1991 to INR 45.17 crores in the accounting period ending
31.03.1997 is again neither here nor there. As a matter of fact, the SWC
24
group, due to its own advertisement and marketing efforts, may well
have reached this figure after a period of six years (the date 30.09.1995
is wrongly recorded by the High Court in paragraph 19 – the correct date
as per the letter dated 26.03.1998 is 31.03.1991, as has been pointed
out by us hereinabove).
19.It only remains for us to point out the judgment in Guffic Chem (P) Ltd.
v. CIT (2011) 4 SCC 254. In this case, the question set out by the Court
is as follows:
“Whether a payment under an agreement not to
compete (negative covenant agreement) is a capital
receipt or a revenue receipt is the question which arises
for determination in this case?”
Here, the Court was dealing with an amount of INR 50 lakhs received
by the appellant-assessee from Ranbaxy as a non-compete fee under
an agreement dated 31.03.1997. This Court in negating the application
of Section 28(ii)(a) to such receipt, held as follows:
“Decision
4. The position in law is clear and well settled. There
is a dichotomy between receipt of compensation by an
assessee for the loss of agency and receipt of
compensation attributable to the negative/restrictive
covenant. The compensation received for the loss of
agency is a revenue receipt whereas the
compensation attributable to a negative/restrictive
covenant is a capital receipt.
5. The above dichotomy is clearly spelt out in the
judgment of this Court in Gillanders case [(1964) 53
ITR 283 (SC)] , in which the facts were as follows: the
25
assessee in that case carried on business in diverse
fields besides acting as managing agents, shipping
agents, purchasing agents and secretaries. The
assessee also acted as importers and distributors on
behalf of foreign principals and bought and sold on its
own account. Under an agreement which was
terminable at will the assessee acted as a sole agent
of explosives manufactured by Imperial Chemical
Industries (Export) Ltd. That agency was terminated
and by way of compensation Imperial Chemical
Industries (Export) Ltd. paid for first three years after
the termination of the agency two-fifths of the
commission accrued on its sales in the territory of the
agency of the appellant and in addition in the third year
full commission was paid for the sales in that year.
Imperial Chemical Industries (Export) Ltd. took a
formal undertaking from the assessee to refrain from
selling or accepting any agency for explosives.
6. Two questions arose for determination in Gillanders
case [(1964) 53 ITR 283 (SC)] , namely, whether the
amounts received by the appellant for loss of agency
was in normal course of business and therefore
whether they constituted revenue receipt? The second
question which arose before this Court was whether
the amount received by the assessee (compensation)
on the condition not to carry on a competitive business
was in the nature of capital receipt? It was held that
the compensation received by the assessee for loss of
agency was a revenue receipt whereas compensation
received for refraining from carrying on competitive
business was a capital receipt.
7. This dichotomy has not been appreciated by the
High Court in its impugned judgment. The High Court
has misinterpreted the judgment of this Court
in Gillanders case [(1964) 53 ITR 283 (SC)] . In the
present case, the Department has not impugned the
genuineness of the transaction. In the present case,
we are of the view that the High Court has erred in
interfering with the concurrent findings of fact recorded
by CIT (A) and the Tribunal.
26
8. One more aspect needs to be highlighted. The
payment received as non-competition fee under a
negative covenant was always treated as a capital
receipt till Assessment Year 2003-2004. It is only vide
the Finance Act, 2002 with effect from 1-4-2003 that
the said capital receipt is now made taxable [see
Section 28(v-a)]. The Finance Act, 2002 itself indicates
that during the relevant assessment year
compensation received by the assessee under noncompetition agreement was a capital receipt, not
taxable under the 1961 Act. It became taxable only
with effect from 1-4-2003. It is well settled that a liability
cannot be created retrospectively. In the present case,
compensation received under the non-competition
agreement became taxable as a capital receipt and
not as a revenue receipt by specific legislative
mandate vide Section 28(v-a) and that too with effect
from 1-4-2003. Hence, the said Section 28(v-a) is
amendatory and not clarificatory.
9. Lastly, in CIT v. Rai Bahadur Jairam Valji [(1959) 35
ITR 148 (SC)] it was held by this Court that if a contract
is entered into in the ordinary course of business, any
compensation received for its termination (loss of
agency) would be a revenue receipt. In the present
case, both CIT(A) as well as the Tribunal, came to the
conclusion that the agreement entered into by the
assessee with Ranbaxy led to loss of source of
business; that payment was received under the
negative covenant and therefore the receipt of Rs. 50
lakhs by the assessee from Ranbaxy was in the nature
of capital receipt. In fact, in order to put an end to the
litigation, Parliament stepped in to specifically tax such
receipts under the non-competition agreement with
effect from 1-4-2003.”
27
20.Respectfully following the aforesaid decision, we allow the appeal and
set aside the impugned judgment for all the reasons given by us above.
All pending applications, if any, stand disposed of in terms of the
judgment.
…………………..………………J.
(R. F. Nariman)
……………..……………………J.
(Navin Sinha)
……………..……………………J.
(B.R. Gavai)
New Delhi
22nd July, 2020. 

Sri Padmanabhaswamy Temple Thiruvananthapuram

Sri Padmanabhaswamy Temple                   Thiruvananthapuram



Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/CIVIL ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO.2732 OF 2020
[Arising Out of Special Leave Petition (C) No.11295 of 2011]
SRI MARTHANDA VARMA (D) THR. LRs. & ANR. …Appellants
VERSUS
STATE OF KERALA & ORS. …Respondents
WITH
CIVIL APPEAL NO. 2733 OF 2020
[Arising Out of Special Leave Petition (C) No.12361 of 2011]
AND
WRIT PETITION(C) No.518 OF 2011
AND
CONMT. PET.(C) No.493 OF 2019 IN SLP(C) No.12361 OF 2011
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
2
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted in Special Leave Petition (Civil) No.11295 of 2011 and
Special Leave Petition (Civil) No.12361 of 2011.
2. Sree Chithira Thirunal Balarama Varma who as Ruler of Covenanting
State of Travancore had entered into a Covenant in May 1949 with the
Government of India leading to the formation of the United State of Travancore
and Cochin, died on 19.07.1991. His younger brother Uthradam Thirunal
Marthanda Varma and the Executive Officer of Sri Padmanabhaswamy
Temple, Thiruvananthapuram (hereinafter referred to as ‘the Temple’) as
appellants 1 and 2 respectively have filed these appeals challenging the
judgment and order dated 31.01.2011 passed by the High Court1
in Writ
Petition (Civil) No.36487 of 2009 and in Writ Petition (Civil) No.4256 of 2010.
A) Writ Petition (C) No.36487 of 2009 was filed by one T.P.
Sundara Rajan, a practising Advocate praying that the High Court be pleased
1 The High Court of Kerala at Ernakulum
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
3
to issue a Writ of Quo Warranto directing the appellant No.2 herein to show the
authority under which he was holding the post of Executive Officer of the
Temple and that the State be directed to take immediate steps to administer the
Temple on the lines of Guruvayoor Devaswom. The Writ Petition was filed
by the licensee of premises belonging to the Temple, against whom the
management had taken steps for eviction.
 B) Thereafter Writ Petition (Civil) No.4256 of 2010 was filed by the
present appellants. After referring to relevant Articles of the Covenant entered
into between the Ruler of the Covenanting State of Travancore and the Central
Government which Covenant is dealt with in extenso hereinafter, it was
submitted:-
“Acknowledging the terms contained in the Covenant the
Government of the United State of Travancore and Cochin
enacted Act 15 of 1950, the Travancore Cochin Hindu Religious
Institutions Act, 1950 (hereinafter referred to as ‘Act’) which was
later acknowledged by the State of Kerala, as evidenced by later
amendments making specific provisions in relation to Sree
Padmanabhaswamy Temple and its properties and its
administration. Chapter II of Part I of the Act deals with the
Travancore Devaswom Board, Section 2(c) defines the
incorporated and unincorporated Devaswom, which says that
‘incorporated Devaswoms’ means the Devaswoms mentioned in
the schedule 1 and ‘unincorporated Devaswoms’ means those
Devaswoms including Hindu Religious Endowments whether in
or outside Travancore which were under the management of the
Maharaja of Travancore and are separately dealt with.
… … …
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
4
7. The right of the Maharaja that existed prior to the execution
of the Covenant Ext. P1, which is nothing but the sovereign right,
to control and supervise the administration of the Temple, the
Pandaravaka properties etc. are insulated from they being made
the subject matter of attacks before Courts, including The
Supreme Court by Article 363 of the Constitution-Construing the
Article the Supreme Court has held that no dispute touching the
subject matter of a covenant etc., shall be entertained by courts
including the Supreme Court. The only remedy is the one
prescribed by Article 143.
… … …
10. The above-mentioned rights, privileges, status etc. of the 1st
petitioner vis-à-vis of the Padmanabhaswamy temple the 2nd
petitioner, guaranteed by the Central Government, as discernible
from Ext. P1 and preserved and protected by Article 363 of the
Constitution, notwithstanding, a few members of the public with
the backing of certain political parties, have filed a representative
Suit O.S. 625/2007 for a permanent prohibitory injunction
restraining the second petitioner from opening the six Kallaras
(cellars) inside the Nalambalam.”
The Writ Petition prayed that Original Suit Nos.625 of 2007, 1618 of
2009 and 1831 of 2009 be transferred by the High Court to itself and the same
be disposed of on the basis of the preliminary issue regarding maintainability.
i) Original Suit No.625 of 2007 was filed in the Court of
Subordinate Judge, Thiruvananthapuram alleging that the plaintiffs
(respondents 3 and 4 in appeal arising out of SLP (Civil) No.12361 of 2011)
were aggrieved by the state of affairs prevailing in the Temple and prayed, inter
alia, for following reliefs:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
5
“A. A decree of permanent prohibitory injunction restraining the
defendants, his agents, henchmen or any other person claiming to
have any right in the affairs or the Temple from opening the six
Kallara (cellars) inside the nalambalam which is plaint B schedule
herein or take any articles from the Cellar in any form, in any
manner or for any purpose or act in any manner detrimental to the
interest of the deity or the devotees.
B. To pass a decree of mandatory injunction removing all articles
brought inside the temple that is plaint A schedule by the 2nd
defendant against the customs, practice and traditions at his own
expenses or in the alternative permit the plaintiffs to remove the
same at their own expenses and to recover the same from the
defendants and their assets.
… … …
PLAINT SCHEDULE PROPERTIES
PLAINT “A” SCHEDULE
Sree Padmanabhaswamy Temple situated inside the Fort Area
with eight entrances spread over a sprawling 7.04 acres of land
together with numerous buildings, temples and all other things
attached thereto of Vanchiyoor Village, Trivandrum Taluk,
Trivandrum District.
PLAINT “B” SCHEDULE
a. Kallara No.1 on the southern side of the Nalambalam
inside the chandanamandapam.
b. Kallara No.2 on the South west corner outside the
chandanamandapam inside the nalambalam.
c. Kallara No.3 on the north western side inside the
Nalambalam.
d. Kallara No.4 on the northern side inside the
Nalambalam
e. Kallara No.5 inside the Sreekovil on the northern
side next to the idol for Vishwaksenar.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
6
f. Kallara No.6 inside the Sreekovil on the south
eastern corner towards the exit gate to Thekkedom
Narasimhamoorthy Temple.”
ii) Original Suit No.1618 of 2009 was filed by one of the employees
of the Temple and prayed:-
“(A) To declare that Defendants 3 & 4 have no authority to act as
office bearers of Sree Padmanabha Swami Temple as it is legally
held that they have no authority to occupy their positions, … …
and for the same, necessary directions may be given to
Defendants 1 & 2 about their illegal occupation.
(B) To pass a decree of permanent prohibitory injunction
restraining the 3rd and 4th Defendants from forcibly obstructing
the plaintiff from discharging her duties as an employee which
she is carrying out for the past 20 years or from doing any act
which is detrimental to the interest of the Plaintiff in doing her
lawful work and for which the Defendants 3 & 4 have no legal
authority.
(C) To pass a decree of permanent prohibitory injunction
restraining the 3rd and 4
th defendants from doing any act which
affects her job as a Computer Operator in Ticket Counter attached
to Sree Padmanabha Swami Temple.”
iii) Original Suit No.1831 of 2009 was filed in the Court of
Munsiff, Thiruvananthapuram by General Secretary of “Sree
Padmanabhaswamy Temple Staff Organisation” (respondent No.6 in appeal
arising out of SLP (Civil) No.12361 of 2011) claiming following reliefs:-
“A. To pass a decree declaring the orders, no.5/SPST/09 dated
10.06.2009 and 14.07.2009 issued by the 2nd defendant creating
the post of “Administrative Officer” and thereby posted the 3rd
defendant in the said post, as void and non est, since it was done
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
7
by the 2nd defendant without any authority, by manifestly flouting
the Rules prevailing in the Temple and without legal sanctity.
B. To pass a decree of mandatory injunction directing the 2nd
defendant to remove the 3rd defendant from the post to which he
has been assumed charges, failing which the 3rd defendant may be
removed by the intervention of this Hon’ble Court.”
3. In the Suits, the authority of the appellants herein to be associated with
the affairs of the Temple was under challenge, while the very maintainability
of the Suits was questioned by the appellants. The basic issue that arose for
consideration was framed by the High Court in the judgment under appeal as:-
“The Central issue arising in these two connected W.P. Is is
whether the younger brother of the last Ruler of Travancore could
after the death of the last Ruler on 20.07.1991 claim to be the
“Ruler of Travancore” within the meaning of that term contained
in Section 18(2) of the Travancore-Cochin Hindu Religious
Institutions Act, 1950 (hereinafter called “the TC Act”) to claim
ownership, control and management of the ancient and great
Temple in Kerala namely, the Sree Padmanabha Swamy Temple
located in Trivandrum.”
The High Court concluded that after the definition of ‘Ruler’ appearing
in Article 366 (22) of the Constitution of India was amended by the Constitution
(Twenty Sixth Amendment) Act, 1971, the appellant No.1 could not claim to
be in control or management of the Temple as successor to the last Ruler. The
High Court thereafter issued the following directions:-
“i) There shall be a direction to the State Government to
immediately take steps to constitute a body corporate or trust or
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
8
other legal authority to take over control of the Sree
Padmanabhaswamy Temple, it’s assets and management and to
run 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 the articles from the Temple. However, they are free to use
such of the articles required for rituals, ceremonies and regular
poojas in the Temple until Temple is taken over by the Authority
as stated above.
iii) There will be direction to the authority constituted by the
Government to open all Kallaras, make inventory of the entire
articles and create a Museum and exhibit all the treasures of the
Temple for the public, devotees and the tourists to view the same
which could be arranged on payment basis in the Temple
premises itself. The first petitioner in W.P.(C) No.4256/2010 and
the successors from the Royal Family should be permitted to
participate in the rituals in the Temple like the Arattu Procession,
which is symbolic of the presence of the “Padmanabhadasa” in
the Festival.
iv) Considering the valuables and treasures in the Temple, the
Government should consider handing over security of the Temple
to a team of Police or atleast provide assistance to the Temple
security staff.
The Government should ensure that the opening of Kallaras
(storage places) and the preparation of inventory are done by a
team of responsible and honest officers either from the
Government or from the authority constituted to manage the
Temple in terms of the directions above so that there should not
be any allegation of pilferage or manipulation. Inventory should
be prepared in the presence of the petitioners in W.P.(C)
No.4256/2010 or their agents towards proof of the items taken
over from their custody.”
The appellants, being aggrieved, are in appeal.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
9
4. The history of the Temple was set out by the High Court during the
course of its judgment, and some of the relevant extracts of the discussion
were:-
“4. Before proceeding to consider the legal issues raised and the
jurisdiction of the lower courts and that of this Court which are
also issues raised before us based on Article 363 of the
Constitution, we have to briefly state the history of the Sree
Padmanabha Swamy Temple. Even though the origin of the
Temple is shrouded in antiquity and different versions are stated
by different Authors, the modern history of this Great Temple
starts with Anizham Thirunal Marthandavarma who established
the modern Travancore State which was previously known as
Venad. For over 200 years prior to the re-establishment of the
Princely State and taking over of management of the Temple and
the State by Marthandavarma, the Temple was under the control
of “Ettarayogam” (group of eight and a half) consisting of seven
pottis (Brahmins), one Nair chieftain and the King who had only
half a vote, whereas all others had one vote each. While the
committee of Potties controlled the Temple, the properties of the
Temple were managed by Ettuveettil Pillamars, the 8 Nair
chieftains belonging to eight big families spread over in different
villages of the State. The King was a low key functionary in the
Committee managing the Temple and he had only a very limited
authority with half a vote……
….The Ettuveettil Pillamars with the help of Brahmins in
management of the Temple plotted against Marthandavarma
becoming the King and they tried to instal the previous King’s
son as the new King in deviation of the practice of the nephew of
the King namely, Marthandavarma becoming the King.
However, in the protracted battle that followed between the heir
to the throne namely, Marthandavarma and his loyalists on the
one side and the Ettuveettil Pillamars, the Brahmins, and the
King’s son’s loyalists on the other side, Marthandavarma
succeeded……
…Marthandavarma took over full control of the State and the
Padmanabha Swamy Temple and it is he who reconstructed the
Temple which was in bad shape after a major fire that took place
years back and installed a new idol. In fact, the King surrendered
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
10
his Kingdom to the presiding Deity namely, Padmanabha Swamy
and declared himself the Dasa or servant of the Lord and assumed
the name “Padmanabhadasa”. Marthandavarma ruled Travancore
from 1729 to 1758 and after him also the Temple continued to be
under the direct management and control of the King.”
(Emphasis added)
5. The act of surrender or dedication of the entire kingdom to Sree
Padmanabhaswamy as referred to by the High Court has been described in a
book2
titled “Sree Padmanabha Swamy Temple” authored by Princess Aswathi
Thirunal Gouri Lakshmi Bayi as under:-
“Thrippati Danam – 5
th of Makaram 925-ME/1750 AD
Fifth Makaram 925 ME/19th or 20th January 1750 AD
(Wednesday asterism Revait) stood witness to the act of a sublime
dedication, the ultimate offering possible for a crowned head,
carried out in supreme devotion – the Thrippati Danam.3
Like Arjuna before the Kurukshetra War and Emperor Ashoka
after the Kalinga War, the futility of battles as a means to an end
and the conscious feeling that the Travancore he created was built
on a foundation of sacrifice of the liver and limbs of countless
numbers who fell due to him and for him, deeply disturbed and
distressed the Maharaja4
. Along with the love which offered
Marthanda Varma no satiation however much he might submit to
his Lord, this trauma also activated him to surrender to God the
Thiruvithamcoor (Travancore) stretching from Kanyakumari to
Paravoor which he had won and made.
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
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
11
Before this dedication certain religious ceremonies like Poorna
Kalasa Homam, invoking the Deity, and so on were performed,
followed later by Mahabhishekam.5 Maharaja Anizhom Thirunal
Marthanda Varma arrived at the appointed time in the morning
accompanied by all male and female members of his family, his
trusted Dewan Ramayyan and other officials. In the presence of
the Swamiyar, members of the yogam and Brahmins, the
Maharaja is submitted to Sree Padmanabha Prajapati by Deed of
Gift carrying his signature, his entire State of Travancore along
with his total right on it thereof by placing the Crown, the royal
umbrella, the twin white chauries (fans), the Manikandha; which
were all symbols of royalty along with some Thulasi leaves on
the Mandapam. Last but most significant, his famous sword,
which had lashed its unleashed valour in countless battle fields,
the unquestioned insignia of sovereign authority which the King
valued the most, was also placed with utmost reverence by the
Maharaja on the step of the Ottakkal Mandapam leading to the
sanctum. Then the King received the sword back from the high
priest and returned to the Palace after worship. His directive that
any further conquest of territory brought under the rule of
Travancore by his successors should also be surrendered to Sree
Padmanabha Swamy was accepted and scrupulously adhered to
with deep respect by the later generations.”
The English Translation of the Original Deed of Dedication which was
drawn up in Malayalam is as under:-
“We, Thrippappoor Keezhperur Veera Bala Marthanda Varma,
Mootha Thiruvati (Senior member) of Thrippappoor and Sree
Pandarakaryam Cheyvarkal, have this day, Wednesday the 5th day
of the month of Thai, the seventh day of the bright lunar fortnight
with Saturn residing in the eighth sign and Jupiter in the twelfth,
Kollam 925, transfer by absolute gift and dedication, to endure as
long as the Sun and Moon shall last, all the lands and functions
appertaining thereto together with all rights and dignities,
positions of honour and all other possessions that we have been
hitherto enjoying as of right within the territories between the
Thovala Fort in the East and the Kavana River in the West, in
favour of Perumal Sree Padmanabha Perumal. In token whereof
5 Dr. A.G. Menon – ‘History of Sri Padmanabhasvami Temple Till 1758’
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
12
we have this day executed this deed of absolute gift and
dedication.”
Before dealing with “Thrippati Danam” or Dedication as stated above,
the Author had stated:-
“The Royal Family had always been famous for the abundance
and lavish nature of the gifts and offerings the members poured
at the feet of Sree Padmanabha Swamy down the ages, from the
hoary past to the pulsating present. These varied from small or
routine offerings to ones of considerable value but there seems to
be no offering in the known religious history of the world which
merits any comparison in the sheer magnitude of emotional and
devotional worth, to the Thrippati Danam6
submitted by Sree
Anizhom Thirunal Maharaja Marthanda Varma on the fifth day
of the month of Makaram 925 ME/19th or 20th of January 1750
AD. Tradition had it all along, even before this Act, that the male
members of the Royal Family, at the age of one, were laid on the
Ottakkal Mandapam and surrendered to Sree Padmanabha
Swamy as his own, gaining for them the supreme title of ‘Sree
Padmanabha Dasa.’7
 Those were individual submissions whereas
this collective offering of the entire State by Marthanda Varma
stands all by itself. Thenceforth he ruled the land as the Dasa
(slave) of Sree Padmanabha Swamy in letter and spirit.”
6 1. Thrippati Danam mean the Danam made on the holy step. This offering was done by the
King along with other emblems of the royalty, when he, after certain rituals placed his royal
and historic sword, the symbol of sovereign authority, on the step of the Ottakkal Mandapam
connecting the sanctum and made over the entire State of Travancore to Perumal Sree
Padmanabha Perumal as ‘Sarva Samarpana Danam’ – total 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 male member
of the family. As is clear form above both are incorrect.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
13
6. After having observed that the Temple continued to be under the direct
management and control of the Kings of Travancore, the High Court made
following observations about the other Devaswoms and the Temple:-
“While the Great Sree Padmanabhaswamy Temple was directly
under the control of the Travancore King, all the major temples
in Travancore were under private ownerships. Every temple had
large extent of properties, but all such properties were in the hands
of tenants who were not properly paying rent or revenue. During
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. He
virtually usurped the powers of the Diwan and the weak Ranis
were not able to resist him. Colonel Monroe found that the only
way to augment the revenue of Travancore State is to bring the
entire temples under the State’s control and in turn, restore the
properties that belong to the temples to the control of the State. It
is under his advice Gouri Lakshmi Bhai issued the Proclamation
on 17.9.1811 whereby all the major Hindu temples in Travancore
were brought under the King. Thereafter the temple properties
were also restored to the State and the temples and the lands were
brought under the Land Revenue Department. This resulted in
improved collection of revenue from the lands and there was
considerable augmentation and stability of the State finances. In
fact, vast extent of properties of the Sree Padmanabhaswamy
Temple were also restored to it and the financial position of this
temple also improved. The temple had such surplus that in the
19th century for the needs of the State, Travancore Kings used to
steadily borrow funds from the Sree Padmanabhaswamy Temple
on repayment basis and the loans were repaid with interest. Ever
since the major temples and their lands were brought under the
control of the Queen through the Proclamation above referred
issued in September 1811, the arrangement continued until the
taking over of the Government temples by the Travancore
Devaswom Board under the TC Act of 1950. The only change
that happened in between was during the rule of Sree Moolam
Thirunal Ramavarma who handed over the temples and the
properties from Revenue Department of the State to the
Dewaswom Department of the Government, from which it was
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
14
taken over by the Travancore Devaswom Board on it’s
constitution. From the history of the temples in Travancore which
we have taken from the book written by Dr. R. Madhu Devan Nair
and published by the Travancore Devaswom Board, what is clear
is that for over one and a half centuries the temples were under
the Government Departments and thereafter under the Devaswom
Board constituted under the TC Act.
So far as the Sree Padmanabhaswamy Temple is concerned, the
only difference is that the temple was under the direct control of
the Travancore King. However, this temple was also treated as a
State/public temple and was never regarded as private property of
the Travancore King or as his family property. The system of the
Travancore King running the Temple continued during the period
of the last ruler who was the King from 1931 to 1949 when the
Agreement of Accession was signed integrating the Princely
States of Travancore and Cochin as one and bringing the
Travancore-Cochin as Part B State under the Constitution.
Government of India was also a signatory to the Agreement of
Accession signed between the Kings of Travancore and Cochin
constituting the Travancore Cochin State. An authentic statement
about the history, status and position of this Temple is available
in the book “Integration of Indian States” written by Sri. V. P.
Menon who played an important role in the integration of Indian
States and who represented Union Government as a signatory to
the Travancore-Cochin Accession Agreement...”
(Emphasis added)
7. Mr. V. P. Menon who was the Constitutional Advisor to the Governor
General till 1947 and Secretary to the Ministry of States played a stellar role in
the integration of the princely States into the Dominion of India. In his book
titled, “Story of Integration of the Indian States”, Mr. Menon dealt with
“Travancore – Cochin” in Chapter XIV and he wrote:-
“The ruling family of Travancore traces its descent from the
ancient Chera kings of South India. In later historic times,
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
15
Travancore was split up into a number of petty principalities. The
consolidation of these into a single State was the achievement of
Rajah Marthanda Varma, who ruled in the first half of the
eighteenth century. He brought the whole of Travancore under his
sway, established order and settled the country. In January 1750,
he formally and solemnly dedicated the State to Sri Padmanabha,
the tutelary deity of his family; and he and his successors have
ever since ruled as ‘Dasas’, or servants of that deity. The present
ruler, Sir Rama Varma8
succeeded to the gaddi in 1924 at the age
of twelve and was invested with full ruling powers in November
1931. During his rule the revenues of the State were nearly
quadrupled from a little over Rs. 2.5 crore to over Rs. 9.5 crore.
The present Maharajah of Cochin, Sir Rama Varma, is, on the
other hand, well advanced in age. In fact, for over a century, the
Maharajahs of Cochin had all been fairly old when they
succeeded to the gaddi. The ruling family of Cochin claims to be
directly descended from Cheraman Perumal, who once ruled
Kerala. Hyder Ali and later Tippu Sultan overran the territories of
Cochin in the latter half of the eighteen century, and this brough
about an alliance with the English East India Company when, in
1791, the Maharajah agreed to become their tributary.
The ruling families in both the States follow the
Marumakkathayam law, or the law of inheritance through the
female line. The Maharajah, assuming that he has no brother, is
succeeded by his sister’s eldest son. This is generally the law
followed by the majority of the Malayalam-speaking Hindus in
both States.
… … …
He added that he governed the State on behalf and as a servant of
Sri Padmanabha and that he attached great importance to this
position being maintained; that if no satisfactory solution on these
points was possible, and if the Government of India still insisted
on the integration of the two States he would rather abdicate than
act against his convictions.
… … …
Lastly, he felt that on account of the dedication of the State to Sri
Padmanabha and the special loyalty and devotion which the rulers
8 His titles are: Major-General. Sri Padmanabha Dasa, Vanchipala, Sir Bala Rama Varma,
Kulasekhara Kiritapati, Manney Sultan, Maharaja Raja Rama raja Bahadur, Shamsher Jang.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
16
of Travancore owed to that deity, it would not be possible for him
to take the usual oath of office as Rajpramukh.
… … …
I reached Trivandrum on 21 May and had several meetings with
the Maharajah. I told him that, with goodwill on both sides, there
was no reason why we should not come to an agreement. The first
hurdle was the Maharajah’s inability to take the oath of office as
head of the State. The devotion of the present Maharajah to Sri
Padmanabha borders on fanaticism; he rules the State not as its
head but as a servant of the tutelary deity.
… … ….
A problem peculiar to Travancore-Cochin related to the
properties attached to temples, called Devaswoms. It is necessary
to give some explanation of the history of the Devaswoms in each
of these States.
Travancore had been ruled by an unbroken line of Hindu kings
from the earliest times and had retained throughout the centuries
its essential character of a Hindu State. The most important
temple in this State has always been, and still is, the Sri
Padmanabha temple, richly endowed and possessing very
extensive landed properties. These were originally managed by a
Yogam (or Synod) of eight hereditary trustees and the ruler, but at
the beginning of the eighteenth century the Yogam was ousted and
the administration of the temple together with its properties was
taken over entirely by the ruler. Thereafter the temple properties
became intermixed with the properties of the State. The State
continued however to contribute to the maintenance of the temple
and the religious ceremonies. This state of affairs continued until
the time of the integration of the two States.
Apart from this temple, there were a large number of Devaswoms
in the State founded and endowed by the people and managed by
ooralars, or trustees. From ancient times, the Maharajah had
Melkoima rights (the right of superior authority or overlordship)
over the trustees. Before 1811, the State had no direct concern in
the management of these temples; in that year Colonel Munro, the
then British Resident for Travancore and Cochin, assumed the
Dewanship and, in exercise of the Melkoima right of the
Maharajah, took over the management of the Devaswoms in
Travancore. Three hundred and forty-eight major and 1,123
minor Devaswoms with all their properties, were thus taken over
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
17
for management. Even then their income was considerable. In
course of time, the management of yet more was assumed.
A good deal of agitation was excited on the ground that the
Government of the State were spending less on the maintenance
of the temples and on the religious ceremonies than the amount
of revenue which accrued from the Devaswom properties and that
they were appropriating the balance of the income to themselves.
In the end, the legal position was put beyond doubt by the issue
of a proclamation by the Maharajah whereby the Government of
the State accepted the obligation of maintaining the temples in an
efficient condition, and all lawsuits against them were barred. In
1946, the Maharajah issued another proclamation which fixed the
amount payable every year to the temples at a figure of not less
than Rs.25 lakhs and reserved the right of making further
contributions if necessary from the State revenue. Finally, in
1948, immediately before the grant of responsible government, a
proclamation was issued by which a yearly sum of Rs.50 lakhs
was fixed for the maintenance of all the temples in the State, other
than the Sri Padmanabha temple which was to receive Rs.1 lakh
annually.
Hindu opinion in the State was unanimous in holding not only
that the continued payment of the existing allotments should be
guaranteed, but also that adequate compensation should be given
in respect of the properties taken over by the Government and the
profits derived from them. The annual contribution thus claimed
ranged from Rs.1 Crore to Rs.2 Crore. Obviously, this plea could
not be accepted; at the same time it was impossible to decline the
obligation of maintaining these temples, the State having taken
over all their properties.
I discussed the question with the ministries, as well as with the
Maharajah of Travancore. Eventually we came to an agreement
by which the annual payment of Rs.51 lakhs made to the temples
by the Travancore Government would be continued and out of
this amount a sum of Rs.6 lakhs would be contributed annually
for 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 administration
of the Sri Padmanabha temple should be conducted under the
control and supervision of the Maharajah through an executive
officer to be appointed by him. It was decided that there should
be a committee of three Hindu members nominated by the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
18
Maharajah to advise him; and that one of the three should be
nominated on the advice of the Hindu members of the Council of
ministers. With regard to the other temples in Travancore, a body
to be called the Travancore Devaswom Board would be set up.
This Board would consist of three Hindu members, one of whom
would be nominated by the Maharajah, one elected by the Hindus
among the Council of Ministers and one by the Hindu members
of the Legislative Assembly of the Union.
In Cochin, unlike Travancore, the properties of the temples were
administered separately as a ‘reserved subject’ by the, Maharajah;
but after the grant of responsible government, he appointed the
Premier of the State to act in his personal capacity as the chief
executive authority for Devaswoms. The Poornathrayeesa temple
at Trippunithura is the temple of the ruling family and the
Maharajah asked for the control of the rituals and ceremonies in
this temple, as well as for those in the Pazhayannur temple. I
agreed to this request. It was decided to set up a Devaswom Board
in Cochin on the same lines as in Travancore. As the Devaswom
properties had remained separate, there was no necessity to make
any special grant from State revenues. The landed properties of
the temples, I should add, are subject to the land revenue and
tenancy laws of the State just like any other landed properties.
These decisions were subsequently incorporated in the covenant.
Later on, when the Constitution of India was being finalized, a
provision was included to safeguard the payment to the temples
in Travancore by making it charged and non-votable by the
Legislature of the Union.
It must be emphasized here that this provision in the covenant
relating to Devaswoms brought about a far-reaching social reform
in both States. These two States had been the seat of an orthodoxy
not found in any other part of India except Malabar. The Templeentry reform in Travancore recognized to a certain extent the
place of harijans in the Hindu society; but under the covenant, the
Harijans would gain a measure of control of the temples through
their representatives in the Legislature and in the ministry and
would also be able to hold posts in the Devaswom Department
which had hitherto been denied to them.
The press had been kept fully informed of the progress of the
discussions and during one of my press conferences, there were
some criticism regarding the provision for maintenance of the
temples in Travancore. I pointed out to the critics that the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
19
properties of the temples taken over by the Travancore State
Government had increased many times in value and yielded an
income greater than the amount of contribution provided in the
covenant. If the contribution was considered undesirable or
excessive, the State would have no option but to return the
properties to the temple. The State could not have it both ways,
by refusing to return the properties while at the same time
refusing to maintain the Devaswoms.”
Mr. V.P. Menon thus adverted to the issues: that after dedication in
January 1750, Raja Marthanda Varma and his successors ruled as “Dasas” or
servants of the deity Sri Padmanabhaswamy; that the ruling families of
Travancore and Cochin followed the Marumakkathayam law or the law of
inheritance through the female line; that an agreement was arrived at, by
which annual payment of Rs.51 lakhs made to the temples by the Travancore
Government would be continued, and out of said amount a sum of Rs.6 lakhs
would be contributed annually for the maintenance of the Temple; that the
administration of the Temple should be conducted under the control and
supervision of the Maharaja of Travancore through an Executive Officer
appointed by him; and that as against such contribution the value of the
properties of the temples taken over by the State Government was far greater.
He also referred to the stand of the Ruler of Cochin with respect to the rituals
and ceremonies in the Poornathrayeesa Temple at Trippunithura.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
20
8. On 10.08.1947 a Proclamation was issued by the Maharaja of
Travancore which stated:-
“WHEREAS our Ancestors and Ourselves have, as devotees of
Sri Padmanabha, been ruling over the State of Travancore during
many centuries and our sole concern has been the welfare and
happiness of our subjects whom we have been associating with us
and propose further to associate with us in the administration of
the State;
And Whereas it has become necessary, in the events that have
happened to regulated the succession to the Throne of
Travancore, to determine other questions incidental thereto, to
regulate and fix the civil list of ourselves and the members of Our
Royal Family and to make provision for certain other purposes,
And Whereas in respect of succession, adoption, marriage, and
other matters, our royal family has from time immemorial
20ecognized and observed the Marumakkathayam law as
modified by custom and usage in Our Royal Family,
We are pleased to Command and Enact as follows1. The succession to the Throne of Travancore shall be in
accordance with the Marumakkathayam law as modified by
the custom and usage prevailing and 20ecognized in Our Royal
Family from time immemorial.
2. In case the Sovereign, on the date of His succession, under the
age of eighteen years, then , until he attains the age of eighteen
years, and where the Sovereign is incapacitated by serious
illness, the powers and authorities belonging to the Sovereign
of Travancore shall be exercised in the name and on behalf of
the Sovereign by a Council of Regency consisting of three of
the senior most members of Our Royal Family, who are above
eighteen years of age, or of such lesser number of members as
may be available.
3. Provided always that the Council shall not be entitled to
change the rule or order of succession or otherwise to hinder
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
21
or delay the assumption of ruling powers by the rightful heir
to the Throne.”
9. It may be mentioned at this stage that Section 6 of the Government of
India Act, 1935 dealt with “Accession of Indian States” while certain
expressions including “Ruler” were defined in Section 311(1) thereof. The
expression “Ruler” was defined as under:
“311. (1) In this Act, and unless the context otherwise requires, in
any other Act the following expressions have the meaning hereby
respectively assigned to them, that is to say :–
… … …
“Ruler” in relation to a State means the Prince, Chief or
other person 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 to the
following effect:-
“6 – (1) An Indian State shall be deemed to have acceded to the
Dominion if the governor-General has signified his acceptance of
an Instrument of Accession executed by the Ruler thereof
whereby the Ruler on behalf of the State:-
(a) Declares that he accedes to the Dominion with the
intent that the Governor- General, the Dominion Legislature,
the Federal Court and any other Dominion authority
established for the purposes of the Dominion shall, by virtue
of his Instrument of Accession, but subject always to the terms
thereof, and for the purposes only of the Dominion, exercise in
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
22
relation to the State such functions as may be vested in them
by order under this Act; and
(b) assumes the obligation of ensuring that due effect is given
within the State to the provisions of this Act so far as they are
applicable therein by virtue of the Instrument of Accession.
(2) An Instrument of Accession shall specify the matters which
the Ruler accepts as matters with respect to which the Dominion
Legislature may make laws for the State, and the limitations, if
any, to which the power of the Dominion Legislature to make
laws for the State, and the exercise of the executive authority of
the Dominion in the State, are respectively to be subject.
(3) A Ruler may, by a supplementary Instrument executed by him
and accepted by the Governor-General, vary the Instrument of
Accession of his State by extending the functions which by virtue
of that Instrument are exercisable by any Dominion authority in
relation to his State.
(4) References in this Act to the Ruler of a State include
references to any persons for the time being exercising the powers
of the Ruler of the State, whether by reason of the Ruler’s
minority or for any other reason.
(5) In this Act a State which has acceded to the Dominion is
referred to as an Acceding State and the Instrument by virtue of
which a State has so acceded, construed together with any
supplementary Instrument executed under this section, is referred
to as the Instrument of Accession of that State.
(6) As soon as may be after any Instrument of Accession or
supplementary Instrument has been accepted by the GovernorGenera] under this section, copies of the Instrument and of the
Governor-General’s acceptance thereof shall be laid before the
Dominion Legislature and all courts shall take judicial notice of
every such Instrument and acceptance.”
10. The Travancore Interim Constitution Act, 1123 came into force on
24.03.1948. Sections 1, 2 and 4 of said Act were:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
23
“1. (1) This Act may be called the Travancore Interim
Constitution Act, 1123.
(2) It shall come into force at once.
(3) It shall remain in force until the new Constitution Act
framed by the Representative Body comes into force.
2. In this Act ‘Our Government’ means the Maharaja of
Travancore exercising the executive authority of the Travancore
State in accordance with the provisions of this Act.
… … …
4. The following subjects, namely,
(a) Our Palace and Our Royal Family and all matters connected
therewith, including Sri Pandaravaka,
(b) Devaswoms, Hindu Religious Endowments and matters
connected therewith, shall be under our exclusive control and
supervision and shall not, in any respect, be within the scope or
purview of the Council of Ministers or the Legislative
Assembly.”
11. The aspects referred to by Mr. V.P. Menon find clearly reflected in
the Covenant entered into by the Maharajas of Travancore and Cochin with
the Government of India. Mr. V.P. Menon had signed the Covenant on behalf
of the Government of India. The Covenant signed by the Maharajas of
Travancore and Cochin on 27.05.1949 and 29.05.1949 respectively
(hereinafter referred to as ‘the Covenant’) as Rulers of the respective
Covenanting States had twenty-two Articles and the relevant portions of the
Covenant were:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
24
“THE COVENANT
ENTERED INTO BY THE RULERS OF TRAVANCORE
AND COCHIN FOR THE FORMATION OF THE UNITED
STATE OF TRAVANCORE AND COCHIN
WE, the Rulers of Travancore and Cochin, do hereby, with the
concurrence and guarantee of the Government of India, enter into
the following Covenant.
Article I
As from the first day of July, 1949, the States of Travancore and
Cochin shall be united in, and shall form, one State, with a
common executive, legislature and judiciary, by the name of the
United State of Travancore and Cochin.
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 Travancore
and Cochin are referred to as the Covenanting States, and the
United State of Travancore and Cochin is referred to as the United
State.
Article III
As from the appointed day,
(a) all right, authority and jurisdiction belonging to the Ruler of
either of the Covenanting States which appertain or are
incidental to the Government of the State shall vest in the
United State;
(b) all duties and obligations of the Ruler of either of the
Covenanting States pertaining or incidental to the
Government of that State shall devolve on the United State,
and shall be discharged by it; and
(c) all the assets and liabilities of either Covenanting State shall
be the assets and liabilities of the United State.
Article IV
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
25
(1) There shall be a Raj Pramukh for the United State.
(2) The present Ruler of Travancore shall be the first Raj Pramukh
and shall be entitled to hold office during his life-time.
(3) In the event of a permanent vacancy arising in the office of
the Raj Pramukh by death, resignation or any other reason, such
vacancy shall be filled in such manner as the Governer General
of India may prescribe.
(4) Notwithstanding anything contained in this Article, if the Raj
Pramukh is by reason of absence or illness or for any other reason
unable to perform the duties of his office, those duties shall until
he has resumed them be performed in such manner as the
Governor General of India may prescribe.
… … …
Article VI
Subject to the provisions of this Covenant, the executive authority
of the United State shall be exercised by the Raj Pramukh either
directly or through officers subordinate to him; but nothing in this
Article shall prevent any competent legislature of the United State
from conferring functions upon subordinate authorities or be
deemed to transfer to the Raj Pramukh any functions conferred
by any existing law on any court, judge or officer or any local or
other authority in either of the Covenanting states.
Article VII
(1) There shall be a Council of Ministers to aid and advise the
Raj Pramukh in the exercise of his functions save as
provided in Articles XII and XIII.
(2) The Ministers shall be chosen by, and shall hold office
during the pleasure of, the Raj Pramukh.
Article VIII
(a) The obligation of the covenanting State of Travancore to
contribute from its general revenues a sum of Rs.50 lakhs every
year to the Devaswom fund as provided for in the Devaswom
(Amendment) Proclamation, 1123 M.E., and a sum of Rs.1 lakh
every year to Sri Pandaravaga referred to in proviso (a) to sub-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
26
section (1) of Section 23 of the Travancore Interim Constitution
Act 1123 M.E., shall, from the appointed day, be an obligation of
the United State and the said amounts shall be payable therefrom
and the Raj Pramukh shall cause the said amounts to be paid every
year to the Travancore Devaswom Board and the Executive
Officer (referred to in sub-clause (b) of this article) respectively.
(b) The administration of Sri Padmanabhaswamy Temple, the Sri
Pandaravaga properties and all other properties and funds of the
said temple now vested in trust in the Ruler of the covenanting
State of Travancore and the sum of Rs.1 lakh transferred from
year to year under the provisions of clause (a) of this article and
the sum of five lakhs of Rupees contributed from year to year
towards the expenditure in the Sree Padamanabhaswamy Temple
under sub-clause (c) of this Article, shall, with effect from the first
day of August 1949, be conducted, subject to the control and
supervision of the Ruler of Travancore, by an Executive Officer
appointed by him. There shall be a Committee known by the name
of the Sree Padmanbhaswamy Temple Committee composed of
three Hindu Members, to be nominated by the Ruler of
Travancore to advise him in the discharge of his functions. Suits
by or against the Sree Padamanbhaswamy Temple or in respect
of its properties shall be instituted in the name of the said
Executive Officer.
(c) The administration of the incorporation and unincorporated
Devaswoms and of Hindu Religious Institutions and Endowments
and all their properties and funds as well as the fund constituted
under the Devaswom Proclamation 1097 M.E. and the surplus
fund constituted under the Devaswom (Amendment)
Proclamation, 1122 M.E. which are under the management of the
Ruler of the covenanting State of Travancore and the sum of
Rs.50 lakhs transferred from year to year under clause (a) shall
with effect from the first day of August 1949 vest in a Board
known by the name of the Travancore Devaswom Board. An
annual contribution of Five lakhs of Rupees shall be made by the
Travancore Devaswom Board from the aforesaid sum of Rs.50
lakhs towards the expenditure in the Sree Padmanabhaswamy
Temple.
(d) The administration of the incorporated and unincorporated
Devaswoms and Hindu Religious Institutions which are under the
management of the Ruler of the covenanting State of Cochin
under Section 50 G of the Government of Cochin Act, XX of
1113 M.E., or under the provisions of the Cochin Hindu Religious
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
27
Institutions Act, I of 1081 M.E., and all their properties and funds
and of the Estates under the management of the Devaswom
Department of the covenanting State of Cochin, shall with effect
from the first day of August 1949 vest in a Board known by the
name of the Cochin Devaswom Board.
Provided that the regulation and control of all rituals and
ceremonies in the temple of Sree Poornathrayeesa at
Trippunithura and in the Pazayannore Bhagavathy temple at
Pazayannore shall continue to be exercised as hither to by the
Ruler of Cochin.
(e) The Board referred to in sub-clause I of this article shall
consist of three Hindu Members, one of whom shall be nominated
by the Ruler of the convenanting State of Travancore, one by the
Hindu among the Council of Ministers, and one elected by the
Hindu members of the Legislative Assembly of the United State.
(f) The Board referred to in sub-clause (d) of this article shall
consist of three Hindu Members, one of whom shall be nominated
by the Ruler of the covenanting State of Cochin, one by the
Hindus among the Council of Ministers, and one elected by the
Hindu Members of the Legislative Assembly of the United State.
(g) Each of the aforesaid Boards shall be a separate body
corporate having perpetual succession and a common seal with
powers to hold and acquire properties and shall by its name sue
and be sued.
(h) Subject to the provisions of this article, the constitution,
powers and duties of the Boards aforesaid shall be such as may
be determined 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 Accession
in accordance with the provisions of Section 6 of the Government
of India Act, 1935, and in place of the Instruments of Accession
of the Covenanting States; and he shall by such Instrument accept
as matters with respect to which the Dominion Legislature may
make laws for the United State all the matters mentioned in List I
and List III of the Seventh Schedule to the said Act, except the
entries in List I relating to any tax or duty;
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
28
Provided that nothing in this Article shall be deemed to prevent
the Raj Pramukh from accepting by a Supplementary Instrument
any or all of the entries in the said List I relating to any tax or duty
as matters with respect to which the Dominion Legislature may
make laws for the United State; and in doing so the Raj Pramukh
may specify the limitations, if any, subject to which the power of
the Dominion Legislature to make laws for the United State in
respect of such matters and the exercise of the executive authority
of the Dominion in the United State are respectively to be subject.
Article X
(1) There shall be a Legislature for the United State consisting of
the Raj Pramukh and the Legislative Assembly.
(2) All persons, who, immediately before the appointed day, are
members of the Representative Body of Travancore or the
Legislative Assembly of Cochin, shall on that day become
members of the Legislative Assembly of the United State.
(3) If immediately before the appointed day any vacancy exists in
the membership of the Representative Body of Travancore or
the Legislative Assembly of Cochin, it shall be deemed to be
a vacancy in the membership of the Legislative Assembly of
the United State; and any such vacancy and any vacancy that
may occur after the appointed day shall be filled in the same
manner as it would have been filled if this Covenant had not
been entered into.
(4) The Legislature of the United State shall subject to the
provisions of this Covenant have full power to make laws for
the United State, including provisions as to the Constitution
of the United State, within the framework of this Covenant
and the Constitution of India.
Article XI
Until a Constitution framed or adopted by the Legislature comes
into operation, the Raj Pramukh shall have power to make and
promulgate Ordinances for the peace and good government of the
United State or any part thereof, and any Ordinance so made shall
for the space of not more than six months from its promulgation
have the like force of law as an Act of the Legislature, but any
such Ordinance may be controlled or superseded by any such Act.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
29
Article XII
If at any time before a Constitution framed or adopted by the
Legislature comes into operation, the Raj Pramukh is satisfied
that a situation has arisen in which the Government of the United
State cannot be carried on in accordance with the provisions of
this Covenant, he may, with the prior concurrence of the
Government of India, by Proclamation-
(a) declare that his functions shall, to such extent as may be
specified in the Proclamation, be exercised by him in his
discretion;
(b) assume to himself all or any of the powers vested in or
exercisable by any authority or body within the United
State;
and any such Proclamation may contain such incidental and
consequential provisions as may appear to him necessary or
desirable for giving effect to the objects of the Proclamation,
including provisions for suspending, in whole or part, the
operation of any provisions of this Covenant or of any other
constitutional provisions relating to any authority or body in the
United State:
Provided that nothing in this Article shall authorize the Raj
Pramukh to assume to himself any of the powers vested in or
exercisable by a High Court, or to suspend, either in whole or in
part, the operation of any law relating to a High Court.
… … …
Article XIV
(1) The Ruler of each Covenanting State shall be entitled to
receive annually from the revenue of the United State for his privy
purse the amounts specified against that Covenanting State in the
Schedule:
Provided that the sums specified in the Schedule in respect of the
Ruler of Travancore shall be payable only to the present Ruler
and not to his successors for whom provision will be made
subsequently by the Government of India.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
30
(2) The said amount is intended to cover all the expenses of the
Ruler including expenses on residence and ceremonies and shall
neither be increased nor reduced for any reason whatsoever.
(3) The United State shall pay the said amount to the Ruler in
four equal instalments at the beginning of each quarter in
advance.
(4) The said amount shall be free of all taxes whether imposed
by the Government of the United State or by the Government of
India.
Article XV

(1) The Ruler of each Covenanting State shall be entitled to the
full ownership, use and enjoyment of all private properties (as
distinct from State properties) belonging to him immediately
before the appointed day.
(2) He shall furnish to the Government of India in the Ministry
of States before the 1st day of September 1949 an inventory of all
immovable property, securities and cash balance held by him as
such private property.
(3) If any dispute arises as to whether any item of property is the
private property of the Ruler or State property, it shall be referred
to such person as the Government of India may nominate in
consultation with the Ruler of Travancore or Cochin as the case
may be, and the decision of that person shall be final and binding
on all parties concerned.

Article XVI
The Ruler of each Covenanting State, as also the member of his
family, shall be entitled to all the personal privileges, dignities
and titles enjoyed by them, whether within or outside the
territories of the State, immediately before the 15th day of August,
1947.
Article XVII
(1) The succession, according to law and custom to the gaddi of
each Covenanting State and to the personal rights, privileges,
dignities and titles of the Ruler thereof is hereby guaranteed.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
31
(2) Every question of disputed succession in regard to a
Covenanting State shall be decided by the Raj Pramukh after
referring it to the High Court of the United State and in
accordance with the opinion given by the High Court.
… … …
Article XXI
Notwithstanding anything contained in the preceding provisions
of this Covenant, the Rulers of Travancore and Cochin shall
continue to have and exercise their present powers of suspension,
remission or commutation of death sentences in respect of any
person who may have been or is hereafter sentenced to death for
capital offence/committed within the territories of Travancore or
Cochin as the case may be."
 At the end, Schedule mentioned the amounts of Privy Purses whereafter
the signatures were appended.
"S C H E D U L E
Covenanting States and Privy Purse amounts.
 Rs.
Travancore 18 lakhs.
Cochin 2,35,000.
In confirmation of the above Covenant we append our
signatures, on behalf of ourselves, our heirs and successors.

Sd/-
Trivandrum, 27.5.49 MAHARAJA OF TRAVANCORE
 Sd/-
Trippunithara, 29.5.49 MAHARAJA OF COCHIN
 The Government of India hereby concur in the above
Covenant and guarantee all its provisions. In confirmation
whereof Mr. Vapal Pangunni Menon, Advisor to the Government
of India in the Ministry of States, appends his signature on behalf
and with the authority of the Government of India.

Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
32
Sd/-
 ADVISER TO THE GOVERNMENT OF
INDIA
 MINISTRY OF STATES.”
12. The Constitution of India made certain provisions with regard to privy
purse sums payable to the Rulers in terms of any covenant or agreement entered
into by the Ruler of the State before the commencement of the Constitution, as
also with regard to the rights and privileges of Rulers of Indian States. In terms
of Article 238 (10), which Article has since then been repealed by the
Constitution (Seventh Amendment) Act, 1956, it was provided that a sum of
Rupees 51 lakhs (fifty one lakhs), as provided in the Covenant, shall be paid to
the Devaswom Board. Articles 291, 362, 363 and 366(22) as they stood before
the Constitution (Twenty Sixth Amendment) Act, 1971 were:-
"Art.291:Privy Purse sums of Rulers- Where under any
covenant or agreement entered into by the ruler of any Indian
State before the commencement of this Constitution, the payment
of any sums free of tax has been guaranteed or assured by the
Government of the Dominion of India to any ruler as such as privy
purse:
(a) Any sums shall be charged on and paid out of the
Consolidated Fund of India; and
(b) The sums so paid to any Ruler shall be exempt from all
taxes on income.
… … …
Art.362: Rights and Privileges of rulers of Indian States.- In
the exercise of the power of Parliament or of the Legislature of a
State to make laws or in the exercise of the executive power of
the Union or of a State, due regard shall be had to the guarantee
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
33
or assurance given under any such covenant or agreement as is
referred to in Article 291 with respect to the personal rights,
privileges and dignities of the Ruler of an Indian State.
… … …
Art. 363: Bar to interference by courts in disputes arising out
of certain treaties, agreements, etc.- (1) Notwithstanding
anything in this Constitution but subject to the provisions of
Article 143, neither the Supreme Court nor any other Court shall
have jurisdiction in any dispute arising out of any provision of a
treaty, agreement, covenant, engagement, sanad or other similar
instrument which was entered into or executed before the
commencement of this Constitution by any ruler of an Indian
State and to which the Government of the Dominion of India or
any of its predecessor Governments was a party and which has or
has been continued in operation after such commencement, or in
any dispute in respect of any right accruing under or any liability
or obligation arising out of any of the provisions of this
Constitution relating to any such treaty, agreement, covenant,
engagement, sanad or other similar instrument.
 (2) In this Article-
(a) "Indian State" means any territory recognised before the
commencement of this Constitution by His Majesty or the
Government of the Dominion of India as being such a State; and
(b) "Ruler" includes the Prince, Chief or other person
recognised before such commencement by His Majesty or the
Government of the Dominion of India as the Ruler of any Indian
State.
… … …
Art.366: Definitions- In this Constitution, unless the context
otherwise requires, the following expressions have the meanings
hereby respectively assigned to them, that is to say –
 1) to 21) ... ... ...
 22) Ruler in relation to an Indian State means the Prince,
Chief or other person by whom any such covenant or agreement
as is referred to in Clause (1) of Article 291 was entered into and
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
34
who for the time being is recognized by the President of India as
the ruler of the State and includes any person as the successor of
such Ruler.
23) to 30) …..”
13. Soon after the coming into force of the Constitution, the TravancoreCochin Hindu Religious Institutions Act, 1950 (hereinafter referred to as "the
TC Act") was enacted to make provision for the administration, supervision
and control of incorporated and unincorporated Devaswoms and of other
Hindu Religious Endowments and Funds. Part I 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 and Part III extends to the whole of the State
except Malabar area.
13.1 Section 2 defines expressions 'Hindu' and 'Hindu Religious
Endowment' as :-
"(aa) "Hindu" means a person who is a Hindu by birth or by
conversion and professes the Hindu religion:
Provided that a hindu member to be nominated or elected to
the Board under Section 4 shall be a person who believes in God
and temple worship and who shall make an oath before the
Secretary of the Board to that effect in the form prescribed by the
Government for the purpose before he enters upon his office;
(b) "Hindu Religious Endowment" means-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
35
(i) every Hindu temple or shrine or other religious
endowment dedicated to, or used as of right by, the Hindu
community \or any section thereof; and
(ii) every other Hindu endowment or foundation, by
whatever local designation known, and property, endowments
and offerings connected therewith, whether applied wholly to
religious purposes or partly to charitable or other purposes, and
every express or constructive trust by which property or money is
vested in the hands of any person or persons by virtue of
hereditary succession or otherwise for such purposes:
but shall not include any Hindu religious institution
belonging to and under the sole management of a single family:
 Provided that, where the Management of religious
institution has passed into the hands of several branches by
division among the members of the original family, the institution
may nevertheless be considered as being in the management of a
single family for the purpose of this Part.
 Explanation - The expression "hereditary succession" shall
include succession to a "Guru" by a disciple by nomination or
otherwise;”
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 administration of
incorporated and unincorporated Devaswoms and of Hindu
Religious Endowments and all their properties and funds as well
as the fund constituted under the Devaswom Proclamation, 1097
M.E. and the Surplus Fund constituted under the Devaswom
(Amendment) Proclamation, 1122 M.E. which were under the
management of the Ruler of Travancore prior to the first day of
July, 1949, except the Sree Padmanabhaswamy Temple, Sree
Pandaravaka properties and all other properties and funds of the
said temple, and the management of all institutions which were
under the Devaswom Department shall vest in the Travancore
Devaswom Board.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
36
4. Constitution of the Travancore Devaswom Board.- (1) The
Board referred to in Section 3 shall consist of three Hindu
members, two of whom shall be nominated by the Hindus among
the Council of Ministers and one elected by the Hindus among
the members of the Legislative Assembly of the State of Kerala.
(2) The Board shall be a body corporate having perpetual
succession and a common seal with power to hold and acquire
properties for and on behalf of the incorporated and
unincorporated Devaswoms and Hindu Religious institutions and
Endowments under the management of the Board.
(4) The Board shall by its name sue and be sued and the
Secretary to the Board shall represent the Board In such suits.
… … …
15. Vesting of jurisdiction in the Board.- (1) Subject to the
provisions of Chapter III of this Part, all rights, authority and
jurisdiction belonging to or exercised by the Ruler of Travancore
prior to the first day of July, 1949, in respect of Devaswoms and
Hindu Religious Endowments shall vest in and be exercised by
the Board in accordance with the provisions of this Act.
(2) The Board shall exercise all powers of direction, control and
supervision over the incorporated and unincorporated
Devaswoms and Hindu Religious Endowments under their
jurisdiction.”
13.3 Chapter III of Part I comprising of Sections 18 to 23 deals specifically
with "Sree Padmanabhaswamy Temple" and said Sections are to the following
effect:-
"18. Administration by Executive Officer. - (1) Out of the
amount of forty-six lakhs and fifty thousand rupees provided for
payment to the Devaswom Fund in Article 290-A of the
Constitution of India, a contribution of six lakhs of rupees shall
be made annually towards the expenditure in the Sree
Padmanabhaswamy Temple.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
37
(2) The administration of the Sree Padmanabhaswamy temple, the
Sree Pandaravaga properties and all other properties and funds of
the said temple vested in trust in the Ruler of Travancore and the
sum of six lakhs of rupees mentioned in sub-section (1) shall be
conducted, subject to the control and supervision of the Ruler of
Travancore, by an executive officer appointed by him.
19. Suits by or against Executive Officer. - Suits by or against
the Sree Padmanabhaswamy Temple or in respect of its properties
shall be instituted in the name of the said Executive officer.
20. Constitution of the Sree Padmanabhaswamy Temple
Committee. - There shall be a Committee known by the name of
the Sree Padmanabhaswamy Temple committee to advise the
Ruler of Travancore in the discharge of his functions. The
Committee shall be composed of three Hindu members who shall
be nominated by the Ruler of Travancore and shall hold office for
such term as he may determine.

21. Chairman of the Committee. - (1) The Ruler of Travancore
shall nominate one of the members to be the Chairman of the
Committee.
(2) The Committee shall meet at least one in quarter in
Trivandrum.
(3) The members of the Committee shall be paid such travelling
allowance and siting for as the Ruler of Travancore may from
time to time determine.
22. Secretary of the Committee. - (1) The Executive Officer of
the Temple shall be the Secretary to the Committee.
(2) The Secretary shall convene the meetings of the Committee
on such dates as may fix in consultation with the Chairman. He
shall, after consulting the Chairman to the Ruler of Travancore,
prepare the age and give the members notice of the day of time
when the meeting is to be held and of business to be transacted
thereat.
(3) A copy of the minutes of the proceedings every meeting shall
be communicated by the Chairman to the Ruler of Travancore.
23. Existing arrangements regarding properties and
collection to continue. - Until other arrangements are made, the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
38
existing arrangements regarding the management of the Sree
Pandaravarga Properties and the collection of revenues therefrom
shall continue as heretofore."
13.4 Chapter IV of Part I deals with Incorporated and Unincorporated
Devaswoms and Section 33 appearing in said Chapter reads:-
“33. Budget and Administration Report.-(1) The Board shall in
each year prepare a budget for the next financial year showing the
probable receipts and disbursements of the incorporated and
unincorporated Devaswoms and Hindu Religious institutions
under the management of the Board during that financial year.
The Board shall also within two months of the commencement of
each financial year submit to the Government9
such number of
copies of the budget so prepared as the Government may direct.
(2) The Board shall in each financial year prepare an annual
administration report of the working of the Board during that year
and shall within three months of the commencement of the next
financial year submit to the Government9
such number of copies
of the said report as the Government10 may direct.”
13.5 Sections 36 and 37 dealing with power of Devaswom Commissioner to
call for periodical accounts and assumption of management of Hindu Religious
Endowments by Board appear in Chapter V of Part I and are as follows: -
"36. Devaswom Commissioner's powers to call for periodical
accounts, etc.- It shall be competent to the Devaswom
Commissioner by a notice to call upon the trustees or managers
of any Endowment falling under the definition in Section 2,
clause (b) to submit periodical accounts of income and
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 the
expression “the Ruler”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
39
expenditure or lists of properties, jewels, vessels, furniture or
other things belonging to the Endowments under their charge or
depute any officer of the Devaswom Department to examine and
verify the same.
It shall also be competent to the officer so deputed to call upon
the trustees and managers by a notice to furnish him with all the
accounts or other records or information he may require for the
purpose of examination and verification and also to assist him in
the examination of accounts and movable property.
The notice shall be served in the manner prescribed by the Code
of Civil Procedure for the time being in force for the service of
summons.
Where the officer deputed under this Section finds that any
movables are likely to be removed or misappropriated, he shall
make an immediate report to the Devaswom Commissioner
taking such 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 may think proper.
Any trustee or manager who wilfully or contumaciously disobeys
any order passed by the Devaswom Commissioner or any notice
issued under this Section shall be deemed to have committed an
offence under Section 181 of the Travancore Penal Code and he
shall be liable to be prosecuted therefor.
"Trustee" shall mean, for the purposes of this Chapter the person
or persons in whom the administration of the affairs of a religious
endowment is vested in trust of holding any property in trust
therefor, by whatever designation such person or persons may be
known.
37. Assumption of management of Hindu Religious
Endowments by Board.- (1) The Board may assume the
management of Hindu Religious Endowments in the following
Cases:-
(a) On the application and the request by a majority
consisting of not less than two-thirds of the trustees, or of the
donors in cases where the donors have reserved to themselves the
power of appointing and dismissing trustees.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
40
(b) On the refusal of the trustees to continue in the
trusteeship or on their own admission of incapacity to continue in
the trust management.
(c) In cases where the Ruler of Travancore had the right to
take part in the management by appointment of certain officers or
servants according to existing usages, if the trustees have failed
to carry on their duties properly and in the best interests of the
institution.
(d) In cases where the Ruler of Travancore had the right to
succeed to the right of management, in part, by reason of escheat
of trustees, if the remaining trustees have failed to carry on their
duties properly and in the best interests of the institution.
(e) In cases of proved mismanagement although the
institutions do not fall under clause (c) or clause (d) of this subsection.
Explanation. - The word "donors' includes the legal
representatives of the donors.
(2) Notwithstanding anything contained in sub-section (1) the
Board may, instead of assuming management, exercise such
superintendence in the management over any institution to which
this Part applies as to best fulfil the objects of the trust, if the
trustees have failed to carry on their duties properly and in the
best interests of the institution.
(3) The Board may make rules for the purpose of carrying into
effect the provisions contained in sub-section (2)
(4) Any person deeming himself aggrieved by an order of
assumption passed on any of the grounds mentioned in clause (c),
(d) and (e) of sub-section (1) of this section may, within a period
of six months from the date of the publication of the order of
assumption in the Kerala Government Gazette, institute in the
District 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 of assumption shall be final."
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
41
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 an
institution, succession to whose office devolves by hereditary
right or is regulated by usage or is specifically provided for by the
founders so long as such mode of succession is in force;
 (4A) " Hindu" means a person who is a Hindu by birth or by
conversion and professes the Hindu religion:
 Provided that a Hindu member to be nominated or elected to
the Board under Section 63 shall be a person who believes in God
and temple worship and who shall make an oath before the
Secretary of the Board to that effect in the form prescribed by the
Government for the purpose before he enters upon his office."
 Section 62 states :-
"62. Vesting of administration in the Board.- (1) The
administration of incorporated and unincorporated Devaswoms
and Hindu Religious Institutions which were under the
management of the Ruler of Cochin immediately prior to the first
day of July, 1949 either under Section 50G of the Government of
Cochin Act, XX of 1113, or under the provisions of the Cochin
Hindu Religious Institutions Act, I of 1081, and all their
properties and funds and of the estates and all institutions under
the management of the Devaswom Department of Cochin, 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 the
temple of Sree Poornathrayeesa at Trippunittura and in the
Pazhayannur Bhagavathy temple at Pazhayannur shall continue
to be exercised as hitherto by the Ruler of Cochin."

Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
42
 Section 128 states:-
"128. Board to exercise powers under Proclamation of 1094.-
The powers vested in the Government and the Diwan by
Proclamation dated the 13th day of Edavam 1094 as amended by
Proclamation, VII of 1120, shall be vested in and exercised by the
Board and the said Proclamation shall have effect 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 Parliament to amend
and codify the law relating to Intestate Succession among Hindus came into
force on 17.06.1956. Section 5 of said Act reads:-
“5. Act not to apply to certain properties.–This Act shall not
apply to—
(i) any property succession to which is regulated by the Indian
Succession Act, 1925, by reason of the provisions contained in
section 21 of the Special Marriage Act, 1954;
(ii) any estate which descends to a single heir by the terms of any
covenant or agreement entered into by the Ruler of any Indian
State with the Government of India or by the terms of any
enactment passed before the commencement of this Act;
(iii) the Valiamma Thampuran Kovilagam Estate and the Palace
Fund administered by the Palace Administration Board by reason
of the powers conferred by Proclamation (IX of 1124) dated 29th
June, 1949, promulgated by the Maharaja of Cochin.”
15. The Constitution (Seventh Amendment) Act, 1956 deleted Part VII
comprising of Article 238, but inserted Article 290A into the Constitution. Said
Article 290A is to the following effect:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
43
“290A. Annual payment to certain Devaswom Funds.- A sum
of forty-six lakhs and fifty thousand rupees shall be charged on ,
and paid out of, the Consolidated Fund of the State of Kerala
every year to the Travancore Devaswom Fund; and a sum of
thirteen lakhs and fifty thousand rupees shall be charged on, and
paid out of the Consolidated Fund of the State of Tamil Nadu,
every year to the Devaswom Fund established in that Sate for the
maintenance of Hindu temples and shrined in the territories
transferred to that State on the 1st day of November, 1956, from
the State of Travancore-Cochin.”
The sum assured in the Covenant and as reflected in Article 238 was
Rupees 51 lakhs. However, after the reorganization of the States, control with
respect to certain Devaswoms falling in its territories vested with State of
Madras (now State of Tamil Nadu) and as such there was modification in the
amount allocable to Devaswoms in the State of Kerala as successor to the
erstwhile State of Travancore and Cochin.
16. Orders11 passed by the President of India declaring that the Rulers of
Indian States ceased to be recognized as Rulers of respective Indian States, gave
rise to challenge on behalf of the Rulers and was dealt with by this Court in
Madhav Rao Jivaji Rao Scindia v. Union of India12
. By a majority of 9:2, the
Constitution Bench of this Court declared the orders passed by the President of
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
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
44
India to be illegal. At this stage, the following reference to the administration
of the Temple and the right of the Ruler of Travancore in terms of Article
VIII(b) of the Covenant in the Judgment of K.S. Hegde, J. may be noted:-
“186. In respect of the administration of Padamanabhaswamy
Temple the right of the Ruler of Travancore was preserved under
Article VIII(b) of the covenant. Similarly the existing rights of
the Rulers of Travancore and Cochin as regards the management
of certain temples and funds were preserved. They were also
given a right to nominate some members to some of the statutory
Boards. From the foregoing it is seen that under the various
covenants, several rights in addition to the right of receiving privy
purses had been created in favour of the Rulers of some of the
covenanting States.”
(Emphasis added)
17. Soon thereafter the Parliament enacted the Constitution (Twenty Sixth
Amendment) Act, 1971 which came into force on 28.12.1971. It omitted
Articles 291 and 362; inserted new Article 363A; and amended the definition
of Ruler appearing in clause 22 of Article 366. The Statement of Objects and
Reasons for said Amendment was as under:-
“The concept of rulership, with privy purses and special
privileges unrelated to any current functions and social purposes,
was incompatible with an egalitarian social order. Government
have, therefore, decided to terminate the privy purses and
privileges of the Rulers of former Indian States. It is necessary
for this purpose, apart from amending the relevant provisions of
the Constitution, to insert a new Article therein so as to terminate
expressly the recognition already granted to such Rulers and to
abolish privy purses and extinguish all rights, liabilities and
obligations in respect of privy purses. Hence this Bill.”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
45
Article 363A and Article 366 (22), after the Amendment read as under:-
“363A. Recognition granted to Rulers of Indian States to
cease and privy purses to be abolished.- Notwithstanding
anything in this Constitution or in any law for the time being in
force-
(a) The Prince, Chief or other person who, at any time
before the commencement of the Constitution (Twenty-sixth
Amendment) Act, 1971, was recognized by the President as the
Ruler of an Indian State or any person who, at any time before
such commencement, was recognized by the President as the
successor of such Ruler shall, on and from such commencement,
cease to be recognized as such Ruler or the successor of such
Ruler;
(b) On and from the commencement of the Constitution
(Twenty-sixth Amendment) Act, 1971, privy purse is abolished
and all rights, liabilities and obligations in respect of privy purse
are extinguished and accordingly the Ruler or, as the case may be,
the successor of such Ruler, referred to in clause (a) or any other
person shall not be paid any sum as privy purse.
… … …
Article 366 (22)
(22) "Ruler" means the Prince, Chief or other person who, at any
time before the commencement of the Constitution (Twenty-sixth
Amendment) Act, 1971, was recognised by the President as the
Ruler of an Indian State or any person who, at any time before
such commencement, was recognised by the President as the
successor of such Ruler;"
18. State of Kerala enacted Sree Pandaravaka Lands (Vesting and
Enfranchisement) Act, 1971. Section 2(k) defines “Temple” to mean Sree
Padmanabhaswamy Temple and Section 3 of the Act is to the following effect:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
46
“(1) Notwithstanding anything contained in any law or contract
or in any judgment, decree or order of court, with effect on and
from the appointed day,-
(a) all rights, title and interest of the Temple in all Sree
Pandaravaka lands held by landholders shall stand estinguished;
(b) All rights, title and interest of the Temple in all Sree
Pandaravaka Thanathu lands, except those referred to in subsection (2), shall vest in the Government;
(c) every building which immediately before the appointed
day belonged to the Temple and was then being used as an office
in connection with the administration of the Melkanganam branch
of 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 appurtenant
thereto.
(2) Nothing contained in sub-section (1) shall apply to the lands
specified in the Schedule.
(3) The Government may, on being satisfied that any Sree
Pandaravaka Thanathu land is absolutely indispensable for the
maintenance, upkeep and use of the Sree Padmanabha Swamy
Temple, or any temple attached thereto, direct, by notification in
the Gazette, that the rights, title and interest in respect of such
land shall cease to vest in the Government and thereupon such
rights, title and interest shall re-vest in the Sree
Padmanabhaswamy Temple.
(4) If any question arises as to whether any building falls or does
not fall within the scope of sub-section (1), it shall be referred to
the Government whose decision thereon shall be final and shall
not be liable to be questioned in any court of law.”
19. The Parliament enacted the Rulers of Indian States (Abolition of
Privileges) Act, 1972 (‘1972 Act’, for short) “to amend certain enactments
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
47
consequent on derecognition of Rulers of Indian States and abolition of privy
purses, so as to abolish the privileges of Rulers and to make certain transitional
provisions to enable the said Rulers to adjust progressively to the changed
circumstances”. The Statement of Objects and Reasons stated:-
“With the derecognition of Rulers and the abolition of privy
purse, the historical considerations on the basis of which special
privileges were given to Rulers of Indian States have ceased to be
valid and the indefinite continuance of those privileges would be
indefensible. However, in order to enable the former Rulers to
adjust progressively to the changed circumstances on account of
the abolition of privy purse, it appears necessary to make special
provisions. Some of the privileges of the former Rulers have been
provided for by certain enactments. This Bill seeks to amend
those enactments in the manner indicated below.
2. The immunity of a Ruler of an Indian State from criminal
prosecution or civil suit under the Code of Criminal Procedure,
1898 and the Code of Civil Procedure, 1908 is being limited to
acts and omission of such Ruler before the 26th 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 being
omitted (clause 4 of the Bill).
3. The exemptions under the Wealth Tax Act, 1957 in respect
of the one residence and heirloom jewellery of each former Ruler
is being limited for his lifetime. Further, the exemption in respect
of heirloom jewellery recognized by the Central Government is
being made subject to conditions similar to those applicable at
present in the case of heirloom jewellery recognized by the
Central Board of Direct Taxes (clause 5 of the Bill).
4. The existing exemption under the Gift-tax Act, 1958 in
respect of the gifts made out of privy purse is being withdrawn
(clause 6 of the Bill).
5. It is also proposed to amend the Income-tax Act, 1967 to
provide for exemption of any ex-gratia payments made by the
Central Government consequent on the abolition of the privy
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
48
purse and for the omission of the provision providing for
exemption in respect of privy purse. Power is being taken to
amend certain notifications issued under Section 60A of the
Indian Income-tax Act, 1922 and continued by Section 297 of the
Income-tax Act, 1961, with a view to suitably modifying the
notifications insofar as they relate to exemptions in favour of
Rulers (clause 7 of the Bill).”
One of the provisions which was amended was Section 5 of the Wealth
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
occupation of a Ruler declared by the Central Government as his
official residence", the words, brackets and figures "any one
building in the occupation of a Ruler, being a building which
immediately before the commencement of the Constitution
(Twenty-sixth Amendment) Act, 1971, was his official residence
by virtue of a declaration by the Central Government'' shall be
substituted with effect 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
Central Government as aforesaid, such recognition shall be
subject to the following conditions, namely: --
(i) that the jewellery shall be permanently kept in
India and shall not be removed outside India except
for a purpose and period approved by the Board:
(ii) that reasonable steps shall be taken for keeping
the jewellery substantially in its original shape;
(iii) that reasonable facilities shall be allowed to any
officer of Government authorised by the Board in this
behalf to examine the jewellery as and when
necessary; and
(iv) that if any of the conditions hereinbefore
specified is not being duly fulfilled, the Board may,
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
49
for reasons to be recorded in writing, withdraw the
recognition retrospectively with effect from the date
of commencement of clause (b) of section 5 of the
Rulers of Indian States (Abolition of Privileges) Act,
1972 and in such a case, wealth-tax shall become
payable by the Ruler for all the assessment years after
such commencement for which the jewellery was
exempted on account of the recognition.
Explanation.--For the purposes of clause (iv) of the
foregoing proviso, the fair market value of any jewellery on
the date of the withdrawal of the recognition in respect
thereof shall be deemed to be the fair market value of such
jewellery on each successive valuation date relevant for the
assessment years referred to in the said proviso:
Provided further that the aggregate amount of wealth-tax
payable in respect of any jewellery under clause (iv) of the
foregoing proviso for all the assessment years referred to
therein shall not in any case exceed fifty per cent of its fair
market value on the valuation date relevant for the
assessment year in which recognition was withdrawn;"
It may be stated here that clause (iv) in Sub-Section 1 of Section 5 of
the Wealth Tax Act, 1957 before such addition stood as under:-
“jewellery in the possession of any Ruler, not being his personal
property, which has been recognized before the commencement
of this Act by the Central Government as his heirloom or, where
no such recognition exists, which the Board may, subject to any
rules that may be made by the Central Government in this behalf,
recognize as his heirloom at the time of his first assessment to
wealth-tax under this Act.”
20. In 1974, State of Kerala passed Travancore-Cochin Hindu Religious
Institutions (Amendment) Act, 1974 amending inter alia Section 33 of TC Act
as under:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
50
“In section 33 of the principal Act, for the words “the Ruler of
Travancore” and “the Ruler”, in both the places where they occur,
the words “the Government” shall be substituted.”
Between 1974 and 1991, and even thereafter, various amendments were
made to the TC Act but Chapter III of Part I of the TC Act has remained
unamended.
21. On 19.07.1991, Sree Chithira Thirunal Balarama Varma, who had
executed the Covenant as Ruler of the Covenanting State of Travancore, passed
away. Since then, the appellant No.1 Uthradam Thirunal Marthanda Varma
had been exercising all functions as “Ruler of Travancore” with respect to the
affairs of the Temple till the Judgment was passed by the High Court in the
present case.
22. Apart from the decision of this Court in Madhav Rao Jivaji Rao
Scindia12
, two cases having some relevance to the present controversy were
dealt with by this Court during 1991-1994. Those cases were:-
a) On 28.11.1991 a Bench of three Judges of this Court rendered its
decision in Revathinnal Balagopala Varma vs. His Highness Shri
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
51
Padmanabha Dasa Bala Rama Varma (since deceased) and others13 and
connected matters. The properties which were described as private properties
by the Ruler of Travancore, the details of which were part of the inventory
appended to the Covenant entered into on 27.05.1949, were subject matter of
ceiling proceedings taken under the Kerala Land Reforms Act, 1963. The
proceedings resulted in declaration that 191.23 acres out of the holding held by
the respondent No.1 in the said matter were surplus over the permissible extent.
The decision was challenged by the members of the family submitting inter
alia that those properties were tarwad properties and ought to be treated as
belonging to different families which constituted independent units in the
tarwad and as such, said properties were divisible amongst said appellant and
respondents Nos.1 to 34 in equal shares. It was accepted by this Court that the
succession would be governed by Marumakkathayam Law. It was observed in
the leading judgment by N.D. Ojha, J.:-
“62. That respondent 1 was a sovereign and the properties in
dispute as held by the sovereign rulers from time to time were
impartible has not been disputed by the learned counsel for the
appellant before us. What has been urged by him, however, is that
the properties in dispute belonged to a tarwad and were as such
joint Hindu family properties and the attribute of impartibility
applied to them because by custom only the eldest member of the
family could be the ruler and to maintain his dignity and status it
was necessary to make these properties impartible.
13 1993 Supp (1) SCC 233
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
52
63. In this connection it has to be kept in mind that the mode of
succession of a sovereign ruler and the powers of such a ruler are
two different concepts. Mode of succession regulates the process
whereby one sovereign ruler is succeeded by the other. It may
inter alia be governed by the rule of general primogeniture or
lineal primogeniture or any other established rule governing
succession. This process ends with one sovereign succeeding
another. Thereafter what powers, privileges and prerogatives are
to be exercised by the sovereign is a question which is not
relatable to the process of succession but relates to the legal
incidents of sovereignty.”
(Emphasis supplied)
It was then concluded that the properties in Suit were not joint family
properties, but were the personal properties of the said respondent No.1.
In his concurring opinion, Ranganathan, J. agreed with the
conclusions arrived at in the majority judgment. It was observed by
Ranganathan, J. as under:-
"9. One of the factual aspects on which reliance is placed by the
learned counsel for the appellant for claiming a family origin to
the Ruler’s properties is that the properties of the rulers have
passed on from one ruler to the next even though the latter was
not a direct lineal descendant. It is urged that, if the properties had
been the personal properties of the ruler, they would have
devolved on his personal heirs on his death. In my opinion, this is
not a very helpful argument. All the properties held by a monarch
or ruler devolve by the rule of primogeniture, there being no
distinction in this regard between his personal properties and
those held by him as ruler. But this need not necessarily be lineal
primogeniture. It could be general primogeniture, the successor
to the rulership being determined according to some prevalent
custom. The properties will devolve on the successor so decided
upon. The fact that the successor is determined on the basis of
marumakkathayam law no doubt causes the properties to devolve
on the next karnavan who succeeds to the rulership. But this does
not necessarily lead to the inference that the properties held by
the Ruler are the properties of a tarwad. The devolution is by
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
53
succession from ruler to ruler and not one by way survivorship
under the marumakkathayam law due to one karnavan taking the
place of a deceased predecessor. This circumstance does not,
therefore, in my opinion, establish the appellant’s claim.”
(Emphasis added)
b) The validity of the Constitution (Twenty Sixth Amendment) Act, 1971
was under challenge in this Court and by its Judgment dated 04.02.1993 in
Raghunathrao Ganpatrao vs. Union of India14 the Constitution Bench of this
Court rejected the challenge. We shall deal with the challenge to said
Amendment and the decision of this Court in Raghunathrao Ganpatrao14 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 Writ Petition may
now be considered. It was submitted on behalf of the State that the Temple had
always been accepted as that of Travancore Palace.
A) In its Written Statement filed in O.S. No.625 of 2007, the State
had submitted:-
“As per the TCHRI Act 1950, Chapter III is headed as ‘Sree
Padmanabha Swami Temple’ by which sections 18 to 23 specifies
the right of the Ruler of Travancore in owing and administering
the temple. As per the said Act, Administration of Sree
Padmanabha Swamy Temple and Sree Pandaravaka properties
and all other properties and funds of the said temple is vested in
trust in the Ruler of Travancore and under the control and
supervision of the Ruler of Travancore by an Executive Officer
14 1994 Supp (1) SCC 191
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
54
appointed by him. The said Chapter III of the Travancore Cochin
Hindu Religious Institutions Act emphatically declares the right
of the Ruler of Travancore in owning and administering the Sree
Padmanabha Swamy Temple. The provisions of the Travancore
Cochin Hindu Religious Institutions Act 1950 backed by the
Covenant is guaranteed by the Constitution of India in the Art
363(1).
7. It is humbly submitted that there are several great temples in
Kerala, which are not under the administrative control of
Travancore Devaswom Board or Cochin Devaswom Board or
under any Devaswom Committees. Famous temples like
Chakkulathukavu Bhagvathy Temple, Mannarasala Sree
Nagaraja Temple are a few examples of such family temples.
There are also many temples owned by private Trustees and local
organization of Hindus too like the Attukal Bhagavathy Temple,
Pazhavangadi Ganpathy Temple etc. Sree Padmanabha Swamy
Temple is also such a family temple trust owned and managed by
the Travancore Palace, and protected by the specific provision of
the Travancore Cochin Hindu Religious Institutions Act.
8. It is submitted that the question whether the present
Maharaja falls within the definition of Ruler of Travancore or not
is a different matter not directly connected with the moot
question. The only question to be considered is whether there is
any public and compelling ground for the Government or
Travancore Devaswom Board to take over the administration of
Sree Padmanabha Swamy Temple. The legal technicalities and
procedures arise only once the need for take over is established.
The traditional and customary belief that has been for long
recognized and accepted is that Sree Padmanabha Swamy Temple
belongs to “Sree Padmanabha Dasas”, the Royal family head of
Travancore Palace and they command high regard respect and
esteem form the public. In the case of Sree Padmanabha Swamy
Temple, there seems no valid reason for Government to interfere
in the administration of the temple. The administration of the
temple has not broken down nor is there any other allegation of a
major nature, which forces Government to interfere in the
administrative affairs of the temple. There is no vaild necessity
or public purpose, which requires Government to take over the
temple. In such a circumstances, Government do not desire to
interfere or take over the administration of Sree Padmanabha
Swamy Temple which is traditionally and historically accepted as
the temples of Travancore Palace. In the light of the above facts
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
55
it is submitted that the averments raised in the suit may be
dismissed.
Hence, it is humbly submitted that, since this suit is
unnecessarily instituted, the Hon’ble Court may be pleased to
accept the written statement filed by the Addl. 3rd respondent and
the suit may be dismissed with costs to these defendants.”
B) In its affidavit in reply in W.P. (Civil) No.36487 of 2009, the
State submitted:-
“5. It is submitted that, as per the TCHRI Act, 1950, Chapter III
is headed as Sree Padmanabha Swamy Temple by which Section
18 to 23 specifies the right of the ruler of Travancore in
administering the temple. As per the provisions of the said Act,
administration of Sree Padmanabha Swamy Temple and Sree
Pandaravaka properties and all other properties and funds of the
temple is vested in trust in the Ruler of Travancore and under the
control and supervision of the Ruler of Travancore by an
Executive Officer appointed by him. The said Chapter III of the
TCHRI Act emphatically declares the right of the ruler of
Travancore in administering the Sree Padmanabha Swamy
Temple.
6. It is humbly submitted that there are several great temples in
Kerala which are not under the administrative control of
Travancore Devaswom Board or Cochin Devaswom Board or
under any Devaswom Committees. Famous temples like
Chakkulathukavu Bhagavathy Temple Mannarassala Sree
Nagaraja Temple are a few examples of such temples which is
run by particular family. There are also many temples owned by
private trustees and local organisations of Hindus like the Attukal
Bhagavathy Temple, Pazhavangadi Ganapathy Temple etc. Sree
Padmanabha Swamy Temple is essentially a temple trust
managed by the Travancore Palace as per the terms of Chapter III
of TCHRI Act and protected by the specific provisions of TCHRI
Act.
7. It is submitted that the question whether the 5th respondent
falls within the definition of Ruler of Travancore or not, is a
different matter. The question to be considered is whether – there
is any public necessity and compelling ground for the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
56
Government to take over the administration of Sree Padmanabha
Swamy Temple. It is submitted that all other questions pertaining
to the legal technicalities and procedures arise only when the need
for take over is established.
8. It is submitted that the traditional and customary belief that
has been for long recognized and accepted is that Sree
Padmanabha Swamy Temple belongs “Sree Padmanabha Dasas”,
the royal famiy head of Travancore Palace and they command
high regard, respect and esteem from the public In the case of
Sree Padmanabha Swamy Temple, there seems no valid reason
for the Government to interfere in the administration of the
temple. It is submitted that, the administration of the temple has
not broken down nor is there any other allegation of a major
nature which forces the Government to interfere the
administrative affairs of the temple. There is no valid necessity
or public purpose which requires the government to take over the
temple. In such a circumstance, the Government do not desire to
interfere or take over the administration of the Sree Padmanabha
Swamy Temple which is traditionally and historically accepted as
the temple of Travancore Palace. It is submitted that the
Government have already filed a detailed written statement in OS
625/2007 pending on the file of Principal Sub Court,
Thiruvananthapuram. None of the grounds raised in the Writ
Petition are sufficient to hold that the interference by the
government in the administration of the temple is called for.
So, it is most humbly prayed that this Hon’ble Court may be
pleased to uphold the above contention and dismiss the above writ
petition.”
24. After considering rival submissions, the High Court in its judgment
under appeal observed:-
“Admittedly the Ruler of Travancore i.e. the late Sri. Chithira
Thirunal Balarama Varama who ruled Travancore as King for 18
years (1931 to 1949) and who was the Rajapramukh of
Travancore-Cochin for six years thereafter and who managed the
Padmanabhaswamy Temple until his death on 20.7.1991, never
claimed that the Sree Padmanabhaswamy Temple was the family
Temple of the Royal Family or as individual property of himself.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
57
In fact, he succeeded in a Suit filed by one of the family members
during his life time seeking partition of the assets of the Royal
Family as properties of the joint family. The last Ruler’s
contention that he was not a Karanavan of the family and the
Royal Family was not a joint family were accepted at all levels of
litigation including the Supreme Court. Even though the last
Ruler executed a detailed will bequeathing his personal
properties, he had not included the Sree Padmanabhaswamy
Temple as his personal property or dealt with the same in the Will.
Admittedly the Great Temple was although in history recognized
as a public Temple run with it’s own income, contributions from
the State and offerings from devotees. The King ruled the State
and managed the temple as a State temple and he was also a
traditional participant in the rituals and ceremonies of the temple;
mainly in the Arattu festival. Both in the Covenant namely
Article VIII(b) of the Accession Agreement and in Section 18(2)
of the TC Act what is stated is that the “Temple is vested in trust
in the Ruler of Travancore.”
Obviously if Temple was the family property of the Royal Family
or the private property of the King, then there was no need for
specific provision in the Accession Agreement or in the TC Act
providing for vesting of the Temple in trust in the hands of the
last Ruler of Travancore. The conspicuous word used to qualify
vesting is “in trust” which means that it is for the benefit of
somebody. The beneficiaries obviously are the devotees, the
State and the public at large and all those who have an interest in
the Temple. So much so, we have to necessarily conclude that
the last Ruler was only a trustee who has retained the control of
the Temple for the benefit of the devotees, the State and the public
at large. Section 18(1) of the TC Act which provides for
continuous funding of the temple by the State Government at the
rate of Rs.6 lakhs annually clearly establish that this is a public
temple, though during the life of the last Ruler, he was allowed to
manage the same. In this context the term “Ruler” used in the
Covenant of Accession Agreement and in Section 18(2) of the TC
Act probably has only a literal meaning to describe Sree Chithira
Thirunal Balarama Varma who was the last Ruler of Travancore
and the signatory to the Accession Agreement. If at all “Ruler”
has a technical meaning, certainly in the absence of a definition
in the TC Act which was enacted after the Constitution came into
force, the definition contained in the Constitution namely, Article
366(22) has to be adopted. Obviously the first petitioner in
W.P.(C) No.4256/2010 or his successors of the Royal Family will
not come within the description of “Ruler” as defined under
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
58
Article 366(22) of the Constitution and the only persons who
answers the definition is the last Ruler and after him no one can
acquire that status which is not heritable. So much so, we hold
that neither the said petitioners nor any of the successors of his
family can claim control or management of the Temple under
Section 18(2) of the TC Act after the death of the last Ruler.”
With regard to the submission based on Article 363 of the Constitution,
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 the High Courts and Supreme Court with regard to
dispute arising under agreement executed by Rulers of Princely
States of India, we have based on the Constitution Bench decision
abovereferred and in view of the specific provisions of Chapter
III contained in the 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 or any of his family members over the Temple
have to be found not under the provisions of Covenant of
Accession Agreement, but under the provisions of Section 18(2)
of the TC Act and Article 366(22) of the Constitution. Since we
are considering the rights, if any, of the first petitioner in W.P.(C)
No.4256/2010 based on the provisions of the Constitution and the
provisions of Chapter III of the TC Act, Article 363 of the
Constitution does not stand in our way and this court has full and
complete jurisdiction to decide all matters arising in these two
W.P.(C)s., which, though are interparty cases, are essentially in
the nature of public interest litigations, wherein this court is called
upon to decide the claim of an individual over a Great Temple
against the claim of the devotees, public and the 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 vesting of management of the Padmanabhaswamy Temple in
Trust in the last Ruler of Travancore in the Accession Agreement
is incorporated in Section 18(2) and so much so, the last Ruler
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
59
managed the Temple not by virtue of the provision in the
Covenant, but by virtue of the statutory provision contained in
Chapter III of the TC Act. In fact, during the period of
management of the Temple by the last Ruler, the entire
contributions payable by the State was paid to the Temple and
there is no dispute on that. The feeble contention raised by the
petitioners in W.P.(C) No.4256/2010 that the Sree
Padmanabhaswamy Temple is a family temple of the Roayl
family of Travancore can only be styled as absured because in
several judgments of this court this Great Temple is recognized
as a “public temple” and in fact, it was the most famous Temple
in the erstwhile Princely State of Travancore. In fact, a Division
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 public temple
which is one of the Mahakshetra of the Hindus and if there 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 he
became the Ruler of Travancore on the death of the last Ruler has
no basis at all after the Twenty Sixth Amendment to the
Constitution. We have already found above that the successors
of the last Ruler including the first petitioner in WPC
No.4256/2010 does not fall within the definition of “Ruler” under
Article 366(22) of the Constitution. In fact, after the Twenty
Sixth Amendment of 1971, the President of India also ceases to
have authority to recognize any person as the Ruler of Indian
State or a successor of such Ruler. So much so, in our view, the
contention of the first petitioner in W.P.(C) No.4256/2010 that he
being brother of the last Ruler becomes the Ruler of Travancore
after the death of the last Ruler, is only absurd. In other words,
on the death of any person who remained recognized by the
President as Ruler prior to the commencement of the Constitution
will not have any successor in the capacity as Ruler of the State.
What Article 366(22) seeks to achieve is to abolish the status of
Ruler and under this definition clause, the status of Ruler and
under this definition clause, no one can acquire the status of Ruler
after the commencement of the Constitution much less through
succession.
In short “Ruler” is not a status that could be acquired through
succession. Therefore, after death of the last Ruler on 20.7.1991,
there is no Ruler in the erstwhile State of Travancore. So much
so, we hold that the first petitioner in W.P.(C) No.4256/2010 who
is the 5th respondent in the connected W.P.(C), cannot step into
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
60
the shoes of the last Ruler to claim management of the Sree
Padmanabhaswamy Temple by relying on the powers conferred
under 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 be
done to save the Temple and to protect the interest of the devotees
and the public at large who have great faith in this Great Temple
which is also recognized as a structure of Archaeological
importance by the 6th respondent in W.P.(C)No.36487/2009. In
this context it is worthwhile to refer to the decision of the
Supreme Court in 2007(7) SCC 482 where in the Supreme Court
has held as follows:
“The properties of deities, temples and Devaswom
Boards, require to be protected and safeguarded by
their trustees/ archakas/ shebaits/ employees.
Instances are many where persons entrusted with the
duty of managing and safeguarding the properties of
temples, deities and Devaswom Boards have usurped
and misappropriated such properties by setting up false
claims of ownership or tenancy or adverse possession.
This is possible only with the passive or active
collusion of the authorities concerned. Such acts of
“fences eating the crops” should be dealt with sternly.
The Government, members or trustees of boards/trusts
and devotees should be vigilant to prevent any such
usurpation or encroachment. It is also the duty of
courts to protect and safeguard the properties of
religious and charitable institutions from wrongful
claims or misappropriation.”
Since the deity is a perpetual minor in the eye of law, the court
has jurisdiction to protect it and this court has in the judgment in
O.P. No.18309/2000 held that Sree Padmanabhaswamy Temple
being a public temple this court has jurisdiction as parent patriae.
All public temples in the erstwhile State of Travancore are now
managed by the Travancore Devaswom Board under the TC Act.
Government is also funding temples in terms of provisions
contained in Article 290-A of the Constitution. In fact, substantial
amount of contribution is paid by the Government under the
provisions of the TC Act to the Devaswom Board and to the Sree
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
61
Padmanabhaswamy Temple separately. After the death of the last
ruler of Travancore, the present Ruler happens to be the State
Government and so much so, by operation of Section 18(2) of the
TC Act, the temple on death of the last Ruler reverts back to the
State for administration by it. Obviously the State being secular
cannot run a temple and so much so, it is for them to constitute a
trust or statutory body like the Guruvayur Devaswom to
administer the Sree Padmanabhaswamy Temple. The stand taken
by the Government has not role in the matter and like other private
temples run in the State, Sree Padmanabhaswamy Temple is also
run by an individual with the help of Executive Officer and
Advisory Board constituted by them.
Government obviously has not answered the query raised by the
court as to whether the present management has legal authority to
run the Temple and if not, what is the step to be taken by the
Government to arrange for management of the Temple.
According to the Government, the Temple is fairly well run and
there is no need for the Government to interfere in the matter. We
do not thing the approach of the Government is fair, reasonable
or legal. We have concluded above that the provision in Chapter
III of the TC Act was only to give effect to the provision in the
Accession Agreement whereby the Ruler of Travancore wanted
to retain control of the Sree Padmanabhaswamy Temple during
his life time. In the absence of any provision in the Covenant or
in the TC Act to vest the Temple in the next senior member of the
Royal Family after the death of the Ruler of Travancore, the
Temple and its properties and assets will revert back and vest in
the State Government under Articles 295 or 296 of the
Constitution.
Obviously if separate provision was not made in the Covenant
and later by incorporation of the same in Chapter III of the TC
Act vesting this Great Temple in trust in the Ruler of Travancore,
it would have gone under the management of the Travancore
Devaswom Board or probably a separate authority would have
been created by the Travancore-Cochin Government to run the
Temple. When there is no provision in the TC Act for succession
of management from the Ruler of Travancore on death of the
Ruler, the provisions of law will take over the situation.
We have already found that under the definition clause in the
Constitution (Article 366(22)), neither the first petitioner in W.P.
(C) No.4256/2010 nor any of the members of the Royal Family
which ruled Travancore prior to integration, answers the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
62
description of “Ruler” and so much so, relatives of the late King
have no right over the Temple.
So much so, in the literal sense and by virtue of the operation of
Articles 295 and 296 of the Constitution, the Temple vests in State
Government through succession or escheat or atleast as the
present Ruler of the State. Therefore, Government necessarily
have to make 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, conveyed to us in court by the Government Pleader, itself
is not going to advance any public interest. Ever so many private
temples have assumed great importance and have accumulated
wealth which is nothing but contribution from the devotees and
public. Wherever public money is collected by temples and
religious institutions, we feel Government has a duty to ensure
that such public institutions are accountable to the devotees. We
feel it is high time regulatory measures are made in the State to
prevent plundering of the public money in the name of God and
faith. Public money collected in trust for the Deity or for religious
institutions, should never be allowed to be diverted for personal
gains and if it is permitted, the same amounts to permission to
carry on business in faith or in the name of God. The question is
whether the Government should allow religion and faith to be
made a business activity by private individuals or trusts. We are
constrained to observe that the attitude of the Government in this
matter is not helpful to the interest of the State or to the devotees
or to the public at large. We have already noticed that besides
being a Hindu Temple, where people ardently worship, the Sree
Padmanabhaswamy Temple is a building of great architectural
value and it’s treasures are worth-preserving and protected and
exhibited for the public to view the same. The operation of
Section 18(2) of the TC Act after the death of the last Ruler of
Travancore should not lead to any orphanage for the temple as we
have already found that neither the first petitioner in W.P.(C)
Nol.4256/2010 nor any of his family members get any right in
management or control of the Sree Padmanabhaswamy Temple.
So much so, Government being the successor to the assets and
institutions of the erstwhile Princely State of Travancore, it is the
duty of the Government to make arrangement in the same way
once State-run temples were handed over to Devaswom Boards.
9. It is a well known fact that the Temple has immense
treasures, some of which are centuries old and are highly valuable
by virtue of it’s antique value and it’s price in terms of the value
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
63
of precious metals like gold, silver and stones used in the making.
Even though we directed the present management to produce the
inventory prepared by the last Ruler, about which there is a
mention in the book written by the previous Ruler’s niece namely,
Smt. Gouri Lakshmibhai, they refused to produce the same.
Some registers produced in the Court were thoroughly incomplete
and unreliable. In view of the public claim made by the last
Ruler’s brother who is presently managing the Temple that the
treasures belong to the Royal Family of Travancore, the
injunction granted by the Sub Court against opening any of the
Kallaras (storage place in the Temple) and removal of any
valuable item, should continue in force and we order so.
However, the management is free to use such of the items which
are required for the regular rituals and ceremonies in the Temple.
In our view, there is no purpose in keeping the treasures of the
temple acquired by it in the course of several centuries as a
mystery and if all the storage rooms (Kallaras) are opened and the
treasures are exhibited in a Museum to be set up in the Temple
Compound, the glory of the Temple and the State will get a boost
and probably the Great Temple will become a major tourist
attraction and income earner. The authority constituted by the
Government should also verify the inventories previously
prepared and check whether any item is lost from the custody of
the Temple and if so, proceed to identify the persons who have
taken away the same and take steps to restore it to the Temple.”
With these conclusions, the directions as quoted hereinabove were
issued by the High Court.
25. Challenging the decision of the High Court, the appellantsin the Special
Leave Petition, from which the first of the instant Appeals arise, inter alia,
raised following grounds :-
“C. The petitioner submits that the temple and its properties, as
prescribed by the Covenant dated 1st July 1949, ought to remain
vested in Trust and the Petitioner, being the senior-most male
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
64
member of the Royal family, will hold and administer the same
as the Trustee of the Temple, through an Executive Officer.
D. As opposed to the tenor, in which the entire impugned
judgment proceeds, the Petitioner, in the past, has donated
considerable amount of money, as and when it was required, for
the smooth functioning of the temple and conduct of rituals and
festivals. It is submitted that the Petitioner has always supplied
the deficit as and when required by the temple. In fact, in 1686
AD, when the entire temple was burnt to the ground, the
predecessor of the Petitioner, Marthanda Varma, rebuilt the
temple in its entirety over a period of 15 years.
… … …
F. Because the Division Bench has failed to notice that the Sree
Padmanabhaswamy Temple and its properties (also called “Sree
Pandaravaka”) remained vested in the presiding deity of the
Temple, Sree Padmanabha, even before the Trippadi Danam of
the State (that is, surrender of the State to the Lord by H.H.
Anizham Thirunal Marthanda Varma Maharaja in the year 1750).
The hereditary trusteeship of the Temple remains with the Ruler
of Travancore, and the original concept of trusteeship remains
unaffected; this being fortified by the absence of any enactment
depriving the Family of its trusteeship.
… … …
Despite a large proportion of these endowments having been
made by the erstwhile Royal family of Travancore, and that Lord
Padmanabha is considered the family deity of the erstwhile Royal
family, the Petitioner asserts that the Padmanabhaswamy temple
is a public temple, and no claim can probably be made by the
Petitioner or anyone to owning the temple or its treasures. The
Petitioner as the Padmanabhadasa merely seeks to recover the
right as a trustee of the temple to manage and administer it, which
has unfortunately been taken away by the impugned judgment
and vested, in the State Government as the successor ‘Ruler’. The
Petitioner retains the right to perform all the traditional rituals and
ceremonies in the same manner as has been performed for
hundred years.”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
65
26. In its Order dated 02.05.2011, this Court directed:-
“Interim stay of direction (i) of the 2 impugned judgment which
directs taking over the assets and management of Sree
Padmanabhaswamy Temple, Thiruvananthapuram.
Interim stay of directions (ii) to (iv) of the impugned judgment
subject to the following interim directions:
(a) There shall be a detailed inventory of the
articles/valuables/ornaments in Kallaras described as (a) to (f) in
the Second Schedule to the Plaint in O.S. No.625/2007 on the file
of the Sub-Judge, Thiruvananthapuram. The inventory shall be
held in the presence of the following observers:-
(i) Two observers appointed by this Court namely, Justice
M.N. Krishnan and Justice C.S. Rajan, retired Judges of Kerala
High Court.
(ii) The first petitioner and second petitioner.
(iii) A senior officer of the State Government, namely the
Secretary, Devaswom Department or his nominated
representative.
(iv) A senior officer nominated by the Secretary, Department
of Archeology, Ministry of Culture, Government of India, who
is stationed at Kerala.
(v) The PIL petitioner (first respondent).
Justice M.N. Krishan shall be in charge of organising the
inventory, fixing of schedules. The entire expenditure of
inventory shall be met by the petitioners. He is also authorised to
seek police security at the time of such inventory. The observers
shall decide upon the procedure and documentation of the
inventory including videographing and photographing the
articles.
(b) In regard to the articles in Kallaras (c) and (d) used for regular
rituals and the ornaments etc. in Kallaras (e) and (f) said to be in
the custody of Periya Nambi and Thekkedom Nambi, the existing
practices, procedures and rituals may be followed in regard to the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
66
opening and closing of the Kallaras and using the articles therein.
As far as Kallaras (a) and (b), which is reportedly not opened for
more than a century, they shall be opened only for the purpose of
making inventory of the articles and then closed and sealed again.
(c) The inventory shall be filed in this Court and copies of the
inventory be given to all participating parties and observers.
(d) The existing temple security shall be further strengthened by
additional security from the local police.
(e) The first petitioner and his family shall be entitled to
participate in all temple festivals and rituals as hitherto before.”
27. The Order passed by this Court on 21.07.2011 noted the stand of the
State and of the appellants as under:-
“The State of Kerala in its affidavit dated 14.7.2011 has declared
its stand on the issues as follows: -
Ownership :
All articles found in the Kallaras of Shree Padmanabha Swami
Temple (including objects of value gold ornaments, precious
stones and antiques) belong to the deity (Temple) and neither the
State Government nor the family of ex-rulers of Travancore can
have any claim over them.
Storage/Exhibition :
The ornaments/antiques are not suitable or sufficient for creating
a separate museum. All the articles being property of the temple,
should remain within the confines of temple premises. It is neither
practical nor advisable to remove them from the temple environs.
Security :
A senior officer of the rank of Additional Director General of
Police has been put in special charge of the security of the temple.
A control room has been made operational. A special team of
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
67
Police officers has been entrusted with the task of studying the
security requirements. Ensuring adequate security for the temple
is the primary responsibility of the government and it will do
everything necessary for acquisition of the state-of-the art
security systems (which are least obtrusive and most effective)
and install them shortly. The temple will be guarded round-theclock. Commandos have been posted to guard the gates.
2. The petitioners (Sri Marthanda Varma the sole trustee and the
Executive Officer of the temple) have expressed their views in the
affidavit dated 14.7.2011 filed by the Executive Officer:-
Ownership :
All articles, ornaments, valuables, precious stones, antiques
without exception found in the Kallaras belong to the Presiding
Deity of Shree Padmanabhaswamy Temple and neither Mr.
Marthanda Varma nor his family members have any claim over
them. Mr. Marthanda Varma merely administers the
property/assets of the deity and the temple as the Trustee.
Storage/Exhibition :
The articles found in Kallara ‘A’ can be segregated into three
categories:
(i) Articles having historic/heritage/artistic value considered
"priceless", can be kept in the Kallara itself, and taken out
periodically for being exhibited on special occasions, within the
temple premises for the benefit of the devotees and general
public.
(ii) Even articles which have only some historic/ heritage/artistic
value, and cannot be considered to be ‘priceless’ shall also be kept
in the safe custody in the Kallara.
(iii)Articles having monetary value but no
historic/heritage/artistic value, could be disposed of and the
proceeds used for purchasing immovable properties, for
renovation and maintenance of the temple and for education
including establishment of a ‘Veda Pathasala’ and a ‘Thanthirika
Peedom’ for imparting training and grooming temple priests.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
68
Inventory :
Videography and photography of the articles in Kallara ‘A’ may
be avoided, as the inventory has already been completed. But if it
is found that videography/photography is necessary for
completing the inventory, the same may be carried out strictly
under the supervision and the films/cartridges shall be deposited
in a sealed cover so that unauthorized copies are not made.
As the primary object of the inventory is to ascertain what is
available and not disposal or sale, there is no need to have a
valuation. However the services of a conservationist or expert in
antiques may be availed for categorizing the articles and
completing the inventory in a scientific manner.
Security arrangements :
While installing security systems, in particular CCTVs and other
electronic devices, care should be taken in regard to two aspects.
First is that the customs/traditions of the temple should be
respected and taken note of. Second is that worship by the
devotees should not be disturbed. The Police personnel on
security duty, when inside the temple, should be unobtrusive and
comply with the dress code of the temple.
… … …
4. After considering the submissions made during arguments and
the suggestions in the affidavits, we find that action is required in
the following areas :
(a) A detailed inventory of the articles in Kallaras A and C to F
with videography/photography shall have to be completed under
the supervision of an Expert Committee. The
videographer/photographer employed for this purpose shall have
security clearance from the local Police authorities.
(b) The services of Experts/Conservationists shall have to be
availed so that handling the articles at the time of inventory or
disturbing the environment in which they were stored in the
Kallaras for centuries does not affect the articles.
(c) Adequate and proper arrangements will have to be made for
security. This would involve not only policing the premises but
also having security measures/systems as also provision of a
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
69
strong room/vaults/steel lining in the Kallaras with the assistance
of a security expert.
5. To achieve the aforesaid results, we hereby constitute the
following Expert Committee to advise regarding inventory,
conservation and security :
(1) Dr. C. V. Ananda Bose, : Co-ordinator
Director General of National Museum and
Vice-Chancellor,
National Museum Institute
New Delhi.
(2) Prof. Dr. M.B. Nair, : Member
Head of Conservation Department,
National Museum Institute
New Delhi.
(3) Nominee of the Director, Archaeological : Member
Survey of India (from its science/research wing).
(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 following
responsibilities:
(a) To organize the inventory by videography/ photography of the
articles in Kallaras A, C to F, and supervise such inventory and
arrange for proper storage of the articles in the respective Kallaras
after 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
for religious purpose. (iii) Articles and ornaments which cannot
be considered 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 of the Temple.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
70
(d) Prepare a scheme for providing security measures in the
temple premises and in the Kallaras.
(e) Examine whether any of the articles are worthy of exhibition
for the benefit of the devotees and if so examine the feasibility of
creation of a high security museum within the temple premises or
the adjoining museum.
(f) Examine and give an opinion whether it is necessary to open
Kallara ‘B’ at this stage.
7. In view of the constitution of the said Expert Committee,
there is no need to continue the large Committee of Observers. In
place of the seven member Observer Committee earlier
appointed, the following smaller Overseeing Committee is
appointed to supervise and guide the working of the Expert
Committee and to complete the inventory and continue as
Observers :
(i) Justice M.N. Krishnan. -Co-ordinator
(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 an interim report,
and furnished some additional information, based on which following
directions were passed by this Court in its Order dated 22.09.2011:-
“We have examined the interim report dated 17.8.2011 of the
Expert Committee and the additional information submitted on
12.9.2011. Having considered the said report and the submissions
of the parties, the following interim directions are issued:
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
71
SECURITY MEASURES
1.1) The Expert Committee has identified thirteen security issues
and suggested sixteen security measures to be put in place. A copy
thereof has already been made available to the State Government
and the Temple Administration. The state government has
submitted the Security Technical Committee Report putting forth
an Integrated and Multi-Layered Security System for the Temple,
for our perusal. In view of security concerns, we do not propose
to extract either the security issues raised or the security measures
suggested by the Expert Committee or the secured measures
proposed by the state government.
1.2) The state government has submitted that it has the expertise
and capability to provide the necessary security measures; and it
is ready and willing to provide the same at its cost. The state
government has assured that it would spare no effort or cost to
provide the best security cover and has stated that there is no need
to indent the service of any central security force like CRPF as
suggested by the Expert Committee, for strengthening the
security. Having examined the Security Technical Committee
Report furnished by the state government and its assurance to put
in place an Integrated Multi-layered Security System for the
Temple in a time-bound manner, we are satisfied that the state
government would be in a position to execute the security plan.
There is no need for the state government to requisition the
services of any central security agency.
1.3) The state government shall take note of the sixteen security
measures that have been suggested by the Expert Committee in
its Interim Report dated 17.8.2011 and promptly implement the
Integrated Multi-layered Security System explained and
suggested in its Security Technical Committee Report. In
implementing the security system, the state government will take
note of temple traditions, customs and practices, and
accommodate the views of the temple administration as far as
possible and feasible.
WORK PLAN
2.1) The Expert Committee has suggested ‘Digital Archiving of
Temple Antiques’ (for short ‘DATA’) to achieve the following :
(i) Recording of detailed information after examination and
assigning an Antique Identification Number/Code; (ii) to store the
information in a computerized Data Base; (iii) recording of a 3D
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
72
image of the object and link it to the data base. The Expert
Committee is permitted to implement the said ‘DATA’
procedure.
2.2) The Expert Committee has recommended appointment of 6
Kerala State Electronic Corporation (KELTRON), a state
government undertaking with technical expertise from Vikram
Sarabhai Space Centre (VSSC), an unit of Department of Space,
for implementing the work plan. Having regard to the security
concerns and approval of the said agency by the state government,
we accept the suggestion that the ‘DATA’ work should be
executed by the said government undertaking instead of inviting
tenders from private agencies.
2.3) KELTRON has estimated the cost of executing the work to
be 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
and miscellaneous items. The cost appears to be very high and far
exceeds the figures shown in the Interim Report. The feasibility
of borrowing/hiring the equipment can be considered. The
software cost and servicing cost requires drastic reduction.
However, KELTRON being a state government undertaking and
VSSC, the technical expert being a unit of Department of Space,
the Expert Committee may proceed to entrust the work to
KELTRON after involving the state government in the process of
negotiations relating to cost and the schedule of payment. We do
not propose to approve the said price. As the state government has
to bear the expenditure involved, it will take the final decision on
the pricing after negotiations, in consultation with the Expert
Committee. The state government shall nominate a Nodal Officer
for this purpose, failing which the Secretary, Devaswom
Department shall be the Nodal Officer.”
29. On 23.08.2012, Mr. Gopal Subramanium, learned Senior Advocate was
appointed Amicus Curiae to assist the Court. The learned Amicus Curiae in his
report dated 01.11.2012 made suggestions with regard to conservation,
renovation and restoration. During the course of his report, the learned Amicus
Curiae made the following observations:
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
73
“29. In this context, it may be necessary to mention that the Sree
Padmanabha Swamy Temple is an integral part of the traditions
of the Royal family of the erstwhile State of Travancore and also
the people of Kerala (including the residents of the ancient city of
Thiruvananthapuram). It is interesting to note that Ashwathi
Thirunal Gouri Lakshmi Bayi (one of the members of the Royal
family), in her book Sree Padmanabha Swamy Temple published
by the Bharatiya Vidya Bhavan, interestingly refers to the Prakrit
version and the final Sanskrit version of Sree Anandapuram from
Syanandoorapura. The Sree Padmanabha Swamy Temple is
connected to twenty four holy teerthams and is also linked with
certain other temples, many of which are in the State of Tamil
Nadu. It may be noted that even today, Mathilakom records or
the palm leaves scrolls which recorded the ancient history of the
Temple and that of the erstwhile State of Travancore are available
in the Temple premises and in the Kerala State Archives.
30. It must also be noted that the idol of Lord Padmanabha is
made using katu sharkara yogam (a complex mixture of 8 natural
ingredients) in which 12008 Salagramas were filled in. This idol
made using katu sharkara yogam was consecrated in the year
1739 under the aegis of the erstwhile ruler of Travancore, Veera
Marthanda Verma (1706-1758). Salagrama is not a mere stone
but a stone of longstanding tradition and spiritual potency in
which it is believed that Hari or Lord Vishnu resides (hence, yatha
salagrame hari). Thus, Eashwara or god manifests Himself in
saguna 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 the
potency of a mahakshetram or a great temple. Therefore, the
sanctity of Sree Padmanabha Swamy Temple is a thousand fold.
… … …
34. At this juncture, it would be appropriate to mention that the
Travancore Royal family is also called the Venadu Raja Vamsha
which is the off-shoot of Chera roya lineage and the Ayi royal
dynasty, and has always regarded Lord Padmanabha Swamy as
their tutelory Deity and this is confirmed by many historical
records where Lord Padmanabha is addressed as
‘yadavendrakuladaivatam’ or the family Deity of
yadavakshatriyas (the present Travancore royalty); thereby
confirming that Sree Padmanabha Swamy is the ‘kuladaivta’ of
the entire family. It may be noted that devotees other than royalty
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
74
have worshipped Lord Padmanabha Swamy as their ‘ishta daivta’
or God of one’s personal choice.
35. It was in 1731 A.D. that the first King of the erstwhile
Travancore Royal family, Sree Veera Marthnda Varma, was
anointed. He was succeeded by Rama Varma (1758-1798).
Moreover, the Royal family consisted of deeply devoted members
who were dedicated to the Temple and who believed that their
lives centred around Sree Padmanabha Swamy. In 1750 A.D., the
entire State of Travancore was gifted to this Deity by a Deed and
the Rulers became servants of the Lord, calling themselves as
Padmanabhadasa. It may also be noted that many of the
Maharajas were great composers of shlokas as well as music. In
fact, many of the Rulers were protectors of the Vedas and the
vedic tradition. Further, the Temple was governed by a council
of trustees called Ettara Yogam headed by the King.
36. One of the greatest Kings of the Royal family was Sri Swathi
Thirunal Maharaja Rama Varma (1813-1846) who was a great
patron of the arts, literature, music and modern science. He was
an extraordinary King who presented an incorruptible system of
governance, framed the first code of regulations of Travancore,
advanced English education, contributed to a collection of rare
manuscripts and undertook a large number of social welfare
measures. In fact, Sri Swathi Thirnal is regarded as one of the
four great vidwans of Carnatic music – they being Muthuswamy
Dikshitar, Thyagaraja, Shyamasastry and Swati Thirunal. The
Kings including Sri Swathi Thirunal donated their personal
wealth to the Temple and, as recorded by Dr. Ventkata
Subramanya Iyer in his brilliant book ‘Swathi Thirunal and his
music’, during his eventful life, once when one of his courtesans
presented a varnam in his honour, the King directed that it should
not be used because only Lord Padmanabha Swamy must be
lauded with music.
… … …
38. In the submission of the Amicus Curiae, this Temple is one
of the most ancient temples of Maha Vishnu and is priceless. The
Amicus Curiae however noticed that urgent measures are
required for the protection, preservation as well as the proper and
effective management of the Temple. Thus, it may be added that
the sprit underlying the judgment of the Kerala High Court as well
as the various interim orders passed by this Hon’ble Court is to
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
75
preserve, protect and manage the Temple along with inventorying
all the treasures which are contained in the Temple.
39. The Amicus Curiae noted that the various Kallaras or vaults
are an integral part of the Temple structure itself. In order to show
the same, the Amicus Curiae is annexing a copy of a plan which
indicates where Sree Padmanabha Swamy in the Sreekovil
(sanctum) is residing and there is a mandapam outside and by the
side 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 / plan
is annexed to this report and marked as Annexure B.
40. The treasures which are contained in these Kallaras are the
continued offerings of the Royal family including the offerings of
other devotees. It may also be noted that the priceless jewels are
intended for alankara of the Lord, gold ornaments, gold utensils
and many priceless treasures are also to be found in these
Kallaras, including priceless gems and coins. Thus, there can
hardly be any doubt that all the treasures of the Temple belong to
the Temple Deity, i.e. to Sree Padmanabha Swamy and nobody
can claim otherwise (in fact, in the temples of South India, it is
customary for people to offer various ornaments of gold and silver
in temples which are then kept separately in those temples). No
person must be allowed to take the riches of the Temple outside
for any extraneous purpose. The Amicus Curiae is of the opinion
that considering the stand of the State of Kerala as reflected in its
written statement filed in O.S. No.625 of 2007 before the Civil
Court in Thiruvananthapuram and the interaction which the
Amicus Curiae had with the Chief Minister, it is clear that the
State would not do anything by which any of the treasures of the
Temple are utilised for any extraneous purpose or for any prupose
unconnected with the Deity/Temple.”
30. In its Order dated 13.02.2013, this Court observed:-
“2. Section 20 of the Travancore Cochin Hindu Religious
Institutions Act, 1950 provides that there shall be a committee to
advise the Ruler of Travancore in the discharge of his functions.
The Committee shall be known as “Sree Padmanabhaswamy
Temple Committee” and composed of three Hindu members
nominated by the Ruler of Travancore. The tenure of the members
of the Committee may be determined by the Ruler.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
76
3. We are informed by Mr. K.K. Venugopal, learned senior
counsel, that the Committee on January 8, 2013 resolved that the
Trustee may appoint a nominee of his choice to report the conduct
of administration and to act according to the directions by the
Trustee from time to time.
4. Pursuant to the above resolution, we are further informed that
the Ruler (trustee) has nominated Mr. Adithya Varma as his
honorary nominee to report on the conduct of administration of
Sree Padmanabhaswamy Temple and to act according to the
directions issued from time to time.
5. Mr. K.K. Venugopal also informed us that within 10 days from
today, the Executive Officer shall be appointed along with one
Assistant Executive Officer and as suggested by Mr. Gopal
Subramanium, learned Amicus Curiae, Mr. Gautam
Padmanabhan shall 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 Conservation and
Restoration Committee to coordinate with Sri Kanippayyoor Sankaran
Namboothiripadu and Thantri of the Temple to supervise the conservation,
restoration and renovation work.
After the death of the original appellant No.1 – Uthradam Thirunal
Marthanda Varma, his successor Moolam Thirunal Rama Varma was
impleaded in his place vide Order dated 09.04.2014.
31. On 15.04.2014, a further Report was filed by the learned Amicus Curiae
along with his recommendations touching upon various issues and topics
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
77
including General Administration, Conservation of Structures within the
Temple, Security Arrangements, Special Audit of the Temple. He suggested
that Special Audit of the Temple be conducted for the last 25 years. He also
made recommendations with regard to the security of Temple Property,
contents of Kallaras.
32. An Administrative Committee came to be constituted as reflected in the
Order dated 24.04.2014. The Order also directed special audit of the Temple
to be conducted. The Order stated:-
“Mr. K.K. Venugopal, learned senior counsel for the petitioners
in SLP (C) Nos. 11295 of 2011 and 12361 of 2011 submits that
the Executive Officer and Administrative Officer of the Sree
Padmanabha Swamy Temple (for short "Temple") have
voluntarily desired to go on leave for four months.
2. We accept his statement.
3. Mr. K.N. Satheesh, IAS, Director, Higher Secondary
Education, Government of Kerala is, for the time being, appointed
as the Executive Officer of the Temple until further orders.
4. By way of interim measure, an Administrative Committee to
discharge 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 and
if he does not happen to be Hindu, then senior most Additional
District Judge of that District. The District Judge or Additional
District Judge, as the case may be, shall be the Chairman of the
Administrative Committee.
(ii) Tantri S/Shri Satish Namboodiri, Saji Namboodiri, Kuttan
Namboodiri.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
78
(iii) Chief Nambi of the Sree Padmanabha Swamy Temple.
(iv) Two members to be co-opted by the District Judge, one of
whom shall be co- opted in consultation with the Government of
Kerala.
5. The keys of all the kallaras except kallaras "E" and "F" shall be
handed over to the Chairman of the Administrative Committee
forthwith.
6. The keys of the two Mudalpadi rooms (designated in the Report
as Kallaras ’G’ and ’H’) shall also be handed over to the
Chairman of the Administrative Committee forthwith.
7. The Administrative Committee shall immediately address the
following issues:
(a) Protection of Kannikaipura and its surveillance by
installing CCTV cameras and other related issues;
(b) The collection of Kanikkai shall be accounted at least
once a week, preferably every Saturday in the presence of
the Chairman of the Administrative Committee;
(c) Cleaning of the passage above the Kallaras within the
Sreekovil;
(d) Cleaning of Temple tanks (Mitranandapuram and
Padmateertham) in a time bound manner by a credible
agency;
(e) Improvement in living conditions of police personnels
guarding the Temple;
(f) Any other issue which may be brought to the knowledge
of the Chairman, Administrative Committee by the learned
Amicus Curiae or State Government or Trustee.
8. A special audit of the Temple and its properties shall be
conducted as early as may be possible, preferably by Shri Vinod
Rai, former Comptroller and Auditor General of India. He will be
at liberty to take services/assistance of any other person/persons
in completion of this task.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
79
9. Until further orders, no property of the Temple shall be
alienated or transferred or disposed of in any manner
whatsoever.”
33. On 06.11.2014, an affidavit was filed by the Chief Secretary of the State
submitting:-
“6. It is submitted that Shree Padmanabaswamy Temple
(“Temple”), was initially part of the erstwhile Princely State of
Travancore and successive Rulers in the erstwhile Princely State
of Travancore, considered Lord Padmanabha as their deity. On
16.04.1960, the Travancore-Cochin Hindu Religious Institutions
Act, 1950, was enacted on the basis of Article 8 of the Covenant
dated 01.07.1949 entered into between the Rulers of Travancore
and Cochin for the formation of the United State of Travancore
and Cochin.
… … …
8. It is thus submitted that, the administration of the Temple,
Sree Pandaravaka properties, all other properties and funds of the
Temple were vested in Trust with the Ruler of Travancore.
9. It is submitted that Sri Chithira Thirunal Maharaja, was the
last Ruler and after his demise on 19.07.1991, the administration
of the Temple was assumed by his brother, the late Sri Marthanda
Varma, who was the Original Petitioner before this Hon’ble
Court, however now deceased.
… … …
12. Further, it was also submitted before the Sub-Court by the
Government that there are so many Temples in the State, for
instance Attukal Bhagavathi Temple in Trivandrum, Chakkulathu
Kavu in Alappuzha District etc. which are managed well by
private or family trusts. Therefore, the Government endorsed and
supported the stand of the Defendant therein, i.e. the erstwhile
royal Family represented by Sree Marthanda Varma, that the
administration of the Temple shall continue to be conducted by
the erstwhile royal Family.
… … …
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
80
18. It is submitted in the affidavit dated 23.04.2014, Sree Mulam
Thirunal has inter alia informed this Hon’ble Court in paragraph
8 of the said affidavit as follows:-
“It is only when Valiya Thampuram Sri Utharadom
Thirunal Marthanda Varma decided to file the Special
Leave Petition against the present impugned Judgment
of the High Court, that he was strongly advised to give
up his stand that the temple is a private temple which
vested in the family, and, on the other hand, to take the
stand that the temple is a public temple…”
… … …
20. It is submitted that with the coming into force of the
Instrument of Accession referred to above, as held by the Hon’ble
High Court in the impugned judgment, the term “Ruler” as
appearing in Section 18 in the Travancore-Cochin Hindu
Religious Institutions Act and Article 290-A of the Constitution
of India is not a heritable right to be continued ad infinitum. With
the passing away of the last Ruler Sree Chithirathirunal
Balaramavarma, Ruler and Rulership are no more valid and
legally sustainable.
21. However, it is categorically submitted that at no point of time
has the Government claimed the wealth to be Government
property, nor do they intend to lay claim ownership of the said
property. On the other hand, the Government states that the
wealth is exclusively the temple property and it is inalienable
except for the benefit of the temple and the devotees of the
temple.
… … …
24. The answering respondent is also prepared to examine the
feasibility of bringing forward legislation preferably on the lines
of the Guruvayur Devaswom Act, 1978 for the said purpose. As
per the said Act, there is a nine member Committee called the
Guruvayur Devaswom Managing Committee of which, three are
permanent members. The three permanent members include the
Zamorin Raja of Calicut, The Karanavan of Mallissery Illam
(head of the Mallissery family) and the Thanthri. Six nonpermanent members are nominated by the Hindus among the
Council of Ministers, which includes a representative of the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
81
employees of the Devaswom and a person belonging to the
scheduled caste. The Government is ready to carry out the
necessary study in this regard.
25. It is submitted that if the Guruvayur model is replicated in
the case of Sree Padmanabha Swami Temple, then the erstwhile
royal family of Travancore can be given representation in the
Managing Committee by reserving one slot on a permanent basis
and the Thanthri could be the other permanent Member.”
34. The Order dated 05.05.2015 passed by this Court noted the submission
of the learned Amicus Curiae that an audit be conducted with regard to the
account of Padmanabhaswamy Temple Trust and its properties. It also noted
the submission of appellants that a special audit for the period had already been
conducted, but he would not have any objection in cooperating with Mr. Rai.
The Order, therefore, directed:-
“In the circumstances, therefore, we direct that a copy of the audit
report filed on behalf of the Padmanabhan Swamy Trust in this
court for the period 01.04.2008 shall be forwarded to Mr. Rai for
his perusal and evaluation. We further direct that in case Mr. Rai
upon consideration of the audit already conducted is of the
opinion that a fresh/special audit needs to be conducted for the
period 01.04.2008 onwards he shall be free to undertake that
exercise in which case the Trust shall make available all such
information and record as may be necessary for completion of that
exercise. Mr. Rai will also do well to raise any query that may be
relevant for completion of the audit to enable the trust to answer
them. We extend the time for completion of the audit till
31.12.2015.
We permit the State Government to approach the Expert
Committee for scaling down the staff deployed for
inventorisation and archiving of antiques and artifacts by
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
82
KELTRON and Expert Committee who may upon consideration
of any such request issue appropriate orders in that regard.
Mr. Rai has in terms of communication dated 1.04.2015 raised a
demand for a sum of Rs. 45,00,000/- representing the total fee
including expenses etc. for the period up to December, 2015.
There is no objection by any one appearing for the parties to the
release of the said amount in favour of Mr. Rai. We accordingly
direct the Administrative Committee to release the amount billed
by Mr. Rai.”
35. The Order dated 09.10.2015 noted the submissions with regard to
customary form of awakening Lord Padmanabhaswamy in the morning, and
left the issue to be decided by the religious head of the Temple as under:-
“… …Having heard learned senior counsel for the parties on this
aspect of the matter, we are of the opinion that the issue could be
more appropriately left to be examined and resolved by the
religious head of the temple. It is common ground that
Tharananellur Sri Parameswaran Namboodiripad, is the Chief
Thanthri of the temple. In our opinion, and as fairly conceded by
learned senior counsel appearing for the parties including Mr.
Subramanium, learned amicus curiae, all matters concerning
permissible rituals, customary practices and pujas to be performed
including the mode of awakening the Lord in the morning ought to
be left to be determined by the Chief Priest (Thanthri)
Tharananellur Sri Parameswaran Namboodiripad in his capacity as
the Chief Thanthri of the temple. We accordingly do so. We make
it clear that Mr. Subramanium has categorically stated that he had
never mandated any change in the customary practices in the
temple and 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 whether
verses "Venkatesha Suprabhatam" should or should not be recited
in the morning for awakening the Lord is a matter left to be
determined by the Chief Priest (Thanthri) Tharananellur Sri
Parameswaran Namboodiripad. … …”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
83
36. In March 2016, Report about Special Audit of Sree Padmanabhaswamy
Temple, its properties and Sree Padmanabha Swamy Temple Trust was filed
by Mr. Vinod Rai, running into two volumes along with “Major AuditObservations and Recommendations”.
The Administrative Committee appointed by this Court resolved on
13.06.2017 as under:-
“the Committee is in the darkness on the financial position
of the temple. Quarterly budget proposals should be
prepared and communicated to the Committee. Similarly,
monthly accounts statement should be placed before the
Committee before 10th of every succeeding month. The
matter will be communicated to the Executive Officer.”
The resolution was communicated to the Executive Officer.
37. The Order dated 04.07.2017 passed by this Court noted that by
consensus Mr. V. Ratheesan, IAS, was nominated as Executive Officer and
he assumed charge on 18.06.2017. Said Order recorded the earlier directions
issued on 09.05.2017 with regard to the essential repairs and while
constituting Conservation Committee and Selection Committee, following
directions were issued:-
“5. Having given our thoughtful consideration to the rival
contentions advanced by the learned counsel, we are of the view
that the security arrangements presently in place should be
allowed to continue with the rider that the entire responsibility of
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
84
securing the properties and the assets of the temple will remain
with the Superintendent of Police, who is the person in-charge of
the responsibility.
6. Mr. Gopal Subramanium, learned amicus curiae further pointed
out that the working relationship between the Administrative
Committee and the Executive Officer needs to be clearly defined.
7. During the course of hearing, learned counsel for the rival
parties were agreeable that this Court clarifies, that the
Administrative Committee shall be in-charge of taking policy
decisions as well as in regard to the manner of functioning of the
temple, and that, the directions issued by the Executive
Committee shall be implemented by the Executive Officer. It was
also submitted that the Executive Officer be made Member
Secretary of the Administrative Committee - to whom he should
be answerable. We order accordingly. We also hereby further
direct, that the Executive Officer as Member Secretary, shall
discharge his duties wholetime. In this behalf, we would make a
request to the State of Kerala to approve the aforesaid
arrangement within two weeks from today.
8. It was also submitted by the learned amicus curiae, that even
though there is a process in vogue whereby accounts of the temple
and the trust are maintained, yet they are not subjected to any
supervision and control. It was pointed out, that the appointment
of a financial controller would lend credibility to the process of
incurring expenses and maintenance of accounts. On examining
the instant issue with the concurrence of learned counsel
representing the rival parties, we request the State of Kerala to
nominate a panel of three officers from the Indian Audit and
Accounts Service, to overlook the audit and accounts of the
temple, and to submit quarterly reports to the Administrative
Committee, for implementation of such suggestions as may be
made in the report. We also hereby direct the same officer,
nominated by the State Government as has been approved by the
Administrative Committee, to audit the accounts of Shri
Padmanabhaswamy Temple Trust and to submit similar reports
to the Administrative Committee. We, therefore, hereby request
the State of Kerala to submit its panel, for the consideration of the
Administrative Committee, within four weeks.
9. The next contention of Mr.Gopal Subramanium, Senior
Advocate and learned amicus curiae was, that an immediate
inspection of the Moolabimbams needs to be carried out, so that
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
85
effective repairs can be made to the deity before the onset of
Dakshinayana (which commences from 15/16.07.2017). In this
behalf, we are aware of the order passed by us on 09.05.2017
wherein we had recorded as under:
“4. A Committee of experts comprising Vezhapparambu
Namboodripad, Satheesh Ezhumtholi and Cheruvally
would undertake a complete inspection of the
Moolabimbams and advise a suitable course of action.
This should be done in conjunction 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 and 18.04.2017,
must be undertaken conjointly by the said persons, in
consultation with the Tantris, wherever necessary. They
shall mutually agree on a Chairman, who may be made
responsible for the work undertaken.
5. In the background of the above, the amicus curiae
submitted, that the inspection and repairs may be
permitted to be undertaken conjointly by the said
persons. They will be at liberty to appoint any
artisan/expert, who may have knowledge of Kadusarkara
for the said purpose. The same should be undertaken at
the earliest, without compromising with any customs
and rituals at the Temple. We accept the submissions
recorded above, and order accordingly.”
10. Since a request to carry out repairs of the deity was personally
made by this Court, we would expect the experts to carry out the
responsibilities vested in them, so that the work commences
before the onset of Dakshinayana. If for some reason, one or the
other expert is not in a position to undertake the obligations, the
Administrative Committee shall ensure that the same shall be
carried out by the remaining experts. It remains the earnest desire
of this Court, that the repairs of the deity are commenced
expeditiously, as stated above, and are concluded at the earliest.
The suggestions of the experts indicating the manner of carrying
out the repairs will be supported financially by the Administrative
Committee. Learned counsel for the rival parties, shall convey to
the experts, the above desire expressed by this Court.
11. Learned counsel for the rival parties are ad-idem that the
responsibility vested with the Overseeing Committee has been
discharged, and as such, the Committee may be dissolved. We
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
86
order accordingly. It was however pointed out, that some of the
responsibilities of the Overseeing Committee were delegated to
the Expert Committee. The Expert Committee has also
substantially completed its task. However, an inventory of the
Kallara B is yet to be prepared, which shall be prepared only after
express direction of this Court.
12. Finally, at the joint request of learned counsel for the rival
parties, the Conservation Committee is re-constituted as under:
1. Dr.Velayudhan Nair
2. 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
constituted a Selection Committee for the Sreekovil and other
allied works by recording as under:
“6. It was further submitted, that the Selection
Committee, for the Sreekovil and other allied works,
which has been mutually agreed, should consist of :
a. Shri Kanipayyoor Shri Krishnan
Namboodripad;
b. Dr. M. Velayuthan Nair
c. Shri S. Ramamurthy (Archaeologist)
d. Shri Sharath Sunder R., (Suggested by Shri
KK Venugopal, learned Senior Counsel).
The said committee be permitted to choose the most
suitable persons, at the best competitive prices and
subject to ratification by the Administrative
Committee, award the work. Allowed as prayed.”
14. It was submitted, that the aforesaid Selection Committee has
not finalised the most suitable persons for carrying out the
Sreekovil, and other allied works. In order to expedite the
finalisation of choosing the most suitable persons, we consider it
just and appropriate to request and appoint Hon'ble Mr.Justice
K.S.P.Radhakrishnan, a retired Judge of this Court, as the
Chairman of the Selection Committee, contemplated in paragraph
6 of the motion bench order dated 09.05.2017 (extracted above).
For the responsibility vested in him, Hon'ble Mr.Justice
K.S.P.Radhakrishnan (Retd.) shall be at liberty to fix his own
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
87
honorarium and terms and conditions, which shall be honoured
by the temple.”
38. In these appeals we heard Mr. Krishnan Venugopal, learned Senior
Advocate for the appellant No.1 and Mr. Arvind P. Datar, learned Senior
Advocate for the appellant No.2; Mr. M.K.S. Menon and Mr. J. Sai Deepak,
learned Advocates for the Intervenors supporting the appellants; Mr. Jaideep
Gupta, learned Senior Advocate for the State and Mr. P.B. Suresh, learned
Advocate for respondents 3, 4 and 6 in appeal 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 but
only recognize pre-existing rights of the Ruler to manage the
Temple and regulate that right to the limited extent of providing
that the Ruler as Trustee shall control and supervise the
administration of the Temple through an Executive Officer and
an Advisory Committee appointed/selected by him.
B. Factually, there is no dispute that it is the Rulers of Travancore
who founded and endowed the Temple and thereafter have
managed it without interruption for several centuries.”
Reliance was placed on the expressions in Article VIII(b) of the
Covenant and Section 18(2) of TC Act and other material including excerpts
from a book titled “Travancore” by Emily Gilchrist Hatch15 :-
15 Published by Oxford University Press, 1939
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
88
“C. The only requirement for validly creating a Hindu religious
endowment in favour of an idol or temple is that the settlor must
clearly and unambiguously express his intention in that behalf.
D. The Trustee’s relationship with the Temple is in the nature of
a shebaitship which is also a “trust” in its broad and general sense
as signifying a fiduciary relation under which a person having
control over a property is bound to use that property for specified
objects.”
It was submitted that the appellant No.1 was not making any claim to
the ownership of the Temple but was only seeking his right to manage the
Temple:-
“E. Shebaitship devolves upon the heirs of the founder absent
any contrary usage or custom.
F. In the present case, the custom and usage by which the
trusteeship of the Temple devolves is the marumakkathayam
law.”
And lastly it was submitted :-
“G. The definition of ‘Ruler’ in Article 366 (22) is only for
purposes of Constitution and not for any other statute.
H. The administration of temples by the erstwhile Maharaja of
Travancore was only as a trustee and not by virtue of regal or
sovereign power.”
40. Mr. Arvind P. Datar, learned Senior Advocate submitted that the
judgment under appeal had gone way beyond the pleadings and dealt with
issues having far reaching consequences in the absence of any pleadings. He
stressed upon the expression “present Ruler” appearing in Article IV of the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
89
Covenant as against the term “Ruler” occurring at other places in the Covenant
and submitted that the term “Ruler” must mean the Ruler who succeeded to the
gaddi as per custom and usage. He further submitted:-
“Article 362 only required the legislature to take note of the
covenants, agreements and other documents, which were signed
with the Rulers while enacting laws. Accordingly, provisions
relating to exemption from taxation, preservation of method of
succession etc. were made to the Income Tax Act, 1922, Income
Tax Act, 1961, Wealth Tax Act, 1957 etc. Significantly, section
5(ii) of the Hindu Succession Act, 1956 also preserved the Rules
of Succession for Rulers and specifically stated that the
provisions of this Act would not apply to the States which were
covered by the covenants or agreement with the Rulers. Other
examples are provisions in the CPC and Cr.P.C. granting certain
exemption to Rulers…….
… … …
It is significant that despite the abolition of the Privy Purses by
the Constitution (26th Amendment) Act, 1971, several of these
exemptions have continued till date. If the concept of Rulers had
been totally abolished, then there would not have been exemption
from income, property tax, wealth tax etc. to all the 555 Rulers
who signed the covenants or agreements. Such a condition is
wholly untenable. [See The Rulers of Indian States (Abolition of
Privileges) Act, 1972, which continued several benefits to the
“Rulers”.]”
He then relied upon the provisions of Article 363 of the Constitution to
submit:-
“Therefore, there is a bar under Article 363 to entertain the
dispute. This has not been discussed by the High Court. These
covenants were signed by the Secretary to the Government of
India and indicated that the covenants are in the nature of an Act
of a State and the municipal court could not have jurisdiction over
any disputes arising out of its terms.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
90
In Sawai Tej Singhji of Alwar v. Union of India16, the bar of
Article 363 was held to apply even to an eviction suit of certain
buildings referred to in a letter written in pursuance of the
Rajasthan covenant. The suit was filed by the Maharaja. By the
same analogy, the writ petition on the question of Rulership
would directly be covered by the bar under Article 363.”
41. Mr. M.K.S. Menon, learned Advocate appearing for some of the
members of the royal family of Travancore as intervenors submitted that the
Constitution, as amended by the Constitution (Twenty Sixth Amendment) Act,
1971 extinguished the rights, liabilities and obligations pertaining to the Privy
Purses alone, and would not impact the mode of succession to the office of a
trustee; and that the expression “Ruler of Travancore” in Section 18 of the TC
Act was not to limit the trusteeship to the “Last Ruler of Travancore”.
42. Mr. J. Sai Deepak, learned Advocate appearing for Intervenors
including Thantri of the Temple who is stated to be the final authority on the
religious practices and traditions of the Temple and “People for Dharma” who
had intervened and assisted this Court in the Sabrimala case relied upon
documents such as “Kerala Mahatmyam”, Book of Princess Gouri Lakshmi
Bayi2
, Book titled “History of Travancore from the Earliest Times”17 and the
16 (1979) 1 SCC 512
17 Authored by P. Shungoonny Menon, Dewan Peishcar of Travancore and published in 1878
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
91
“Travancore State Manual”18 to stress the special relationship of the Rulers of
Travancore as “Padmanabhadasas” with Sri Padmanabhaswamy. He submitted
that the ruling family traces its lineage to Maharaja Aditya on whom Bhagwan
Parshurama is believed to have bestowed the duty to take care of the Temple
and that the role played by the royal family as descendants of Maharaja Aditya
and as “Padmanabhadasas” being essential and integral to the very founding
and identity of the Temple, would be fully protected by Articles 25(1) and 26(b)
of the Constitution. He further submitted that “Parashurama Padhati” being
practised by a handful of temples in the World including the Temple, said
Padhati having a distinct identity of its own, and the people being integrally
connected to the Temple would be entitled to protection under Article 29(1) of
the Constitution. In his submission, Article VIII of the Covenant is a standalone recognition of the relationship between the Ruler of Travancore and the
Temple; that said Article is neither part of the Privy Purse arrangement under
Article XIV nor part of the personal rights, privileges, dignities and titles of the
Ruler as referred to in Article XVII of the Covenant; and therefore any
development or operation of law affecting other provisions of the Covenant
would not affect Article VIII of the Covenant. It was further submitted that the
18 Authored by V. Nagam Aiya, Dewan Peishcar of Travancore and published in 1906
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
92
expression “arising out of” in Article 363 of the Constitution being of the widest
amplitude, disputes having any connection with the Covenant would be beyond
the scope of judicial review by virtue of Article 363(1) of the Constitution. In
support of the submission, reliance was placed on the decision of this Court in
Renusagar Power Co. Ltd. vs. General Electric Company and Ors.19
43. In response, Mr. Jaideep Gupta, learned Senior Advocate for the State
submitted that two sets of issues arise for consideration:
A) The true and correct definition of the word “Ruler” in Section
18(2) of TC Act.
B) Allegations of mismanagement of the Temple.
Since the reports of the learned Amicus Curiae and of Mr. Vinod Rai
were not dealt with by the learned counsel for the appellants in their opening
submissions, Mr. Gupta deferred submissions regarding the second issue, till
the appellants were heard on the said Reports. As regards the first issue, he
submitted:-
19 AIR (1985) SC 1156 : (1984) 4 SCC 679
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
93
i) The expression “Ruler” was repeatedly used in the Covenant in
the context of head of the State and the expression “Ruler” in Article VIII(b)
must have the same meaning.
ii) The expression “Ruler” in Section 18 of the TC Act must be
given the same meaning as the one contained in Article 366(22) of the
Constitution and not as referring to senior members of successive generations
of the royal family of Travancore.
iii) The material on record including that concerning dedication of
the State to the deity by the then Ruler did not satisfy the elements necessary to
constitute an endowment, which would require the appropriation of specific
property for a specific religious or charitable purpose.
For this proposition, reliance was placed on the decisions of this Court
in Profulla Chorone Requitte v. Satya Chorone Requitte20 and in Angurbala
Mullick vs. Debabrata Mullick21
.
iv) As the family of the appellant No.1 did not claim any proprietary
right even of a limited nature, there could not have been any shebaitship in
20 (1979) 3 SCC 409
21 AIR 1951 SC 293 : (1951) SCR 1125
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
94
favour of said family at any point of time and at best it would amount to
hereditary trusteeship.
v) Whatever be the nature of relationship between the Ruler of
Travancore and the Temple, right from inception, the office devolved upon the
Ruler in his capacity as a Ruler and not as a private individual being the senior
member of the ruling family of Travancore.
vi) The relationship underwent a change after the enactment of the
TC Act; it became a statutory office and ceased to be in the nature of private
shebaitship or hereditary trusteeship of any kind.
vii) In any case, such relationship was with the Ruler of Travancore
as Ruler and with the abolition of the concept of Ruler by the Constitution
(Twenty Sixth Amendment) Act, 1971, it ceased to have any effect.
viii) The bar under Article 363 of the Constitution would not get
attracted in the instant case.
With regard to the submissions advanced by the learned counsel
appearing for the Intervenors, it was submitted that in the absence of a claim
by a properly constituted Religious Denomination, there would be no question
of adjudicating or giving a finding regarding violation of any rights under
Articles 25 and 26 of the Constitution. In his submission, there would be no
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
95
occasion to enter into the question whether or not the Temple is of a
Denominational character; and in any case the relationship between the Ruler
of Travancore and the Temple cannot be said to be an essential or integral part
of the Hindu religion in general.
44. Mr. Gupta, leaned Senior Advocate also submitted a chart giving details
about the expenditure incurred by the State in connection with the Temple.
Leaving out the annual contribution that the State is required to extend, the
Chart shows expenditure incurred in the sum of Rs.11,70,11,000/- for the
period 2012-2019 as under:-
Year Govt. Order No. Item Amount
2012 2. G.O. (Rt)
No.240/2012/RD
Dated 12.01.2012
3. G.O. (Rt)
No.1859/2012/RD
Dated 29.03.2012
4. G.O. (Rt)
No.6668/2012/RD
Dated 22.11.2012
Fund to Digital Archiving of
Antiques and artifacts-Keltron
Fund to Expert Committee Sree
Padanabha Swamy Temple
Fund for Strengthening Kallara-A
at Sree Padmanabha Swamy
Temple – Expert Committee
2.5 crores
50 lakhs
54 lakhs
2013 2. G.O. (Rt)
No.4426/2013/RD
Dated 02.08.2013
3. G.O. (Rt)
No.6542/2013/RD
Dated 09.12.2013
Visit of Prof. Babu, Delhi
University to Padmatheertham
pond
Additional Fund to Digital
Archiving of Antiques and
artifacts- Keltron
30
thousand
86.39
lakhs
2014 1. G.O. (Rt.)
No.1821/2014/ RD
Dated 07.05.2014
Fund to Expert Committee Sree
Padmanabha Swamy Temple
1 Crore
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
96
2. G.O. (Rt.)
No.1843/2014/ RD
Dated 12.05.2014
3. G.O. (Rt.)
No.4308/2014/ RD
Dated 02.09.2014
4. G.O. (Rt.)
No.4980/2014/ RD
Dated 16.10.2014
Fund for Strengthening Kallara -A
at Sree Padmanabha Swamy
Temple – Expert Committee
Additional Fund to Digital
Archiving of Antiques and
artifacts – Keltron
Fund allotted to Audit Committee
67.65
lakhs
66.16
lakhs
48 lakhs
2015 1. G.O. (Rt.)
No.09/2015/ RD
Dated 05.01.2015
2. G.O. (Rt.)
No.3133/2015/ RD
Dated 18.06.2015
4. G.O. (Rt.)
No.6506/2015/ RD
Dated 05.12.2015
Renovation of Padma Theertham
pond
Additional Fund to Digital
Archiving of Antiques and
artifacts – Keltron
Additional Fund to Digital
Archiving of antiques and artifacts
– Keltron
1 Crore
30.36
lakhs
1.5125
crore
2016 G.O. (Rt)
No.608/2016/RD
Dated 27.01.2016
Fund to Expert Committee 10 lakhs
2017 2. G.O. (Rt)
No.861/2017/RD
Dated 02.03.2017
3. G.O. (Rt)
No.2057/2017/RD
Dated 01.05.2017
4. G.O. (Rt)
No.4555/2017/RD
Dated 30.10.2017
Fund to Expert Committee
Renovation of Mithrananthapuram
pond
Sewerline from Ramana Madom
near north Nada of the Temple –
Water Authority
5 lakhs
1 Crore
28 lakhs
2019 1. G.O. (Rt)
No.123/2019/RD
Dated 10.01.2019
2. G.O. (Rt)
No.124/2019/RD
Dated 10.01.2019
Digital Archiving of Antiques and
artifacts – C- Dit (To Executive
Officer)
Fund to Expert Committee
18 lakhs
5 lakhs
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
97
Thus, Rs.6,02,16,000/- were spent on Digital Archiving of Antiques
and 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.
45. Mr. P.B. Suresh, the learned counsel for respondents 3, 4 and 6 in appeal
arising out of Special Leave Petition (Civil) No.12361 of 2011 submitted:-
i) The Covenants executed by the erstwhile Rulers have no existence
and are not enforceable. Reliance was placed on the decision of this Court in
Raghunathrao Ganpatrao14
.
ii) Sections 18(2) and 20 of the TC Act, being against the principles
and mandate emanating from Article 363A of the Constitution, are not
enforceable. Reliance was placed on the decision of this Court in Deep Chand
and Others vs. State of U.P. and others22
.
iii) Consequently, no declaratory relief could be sought in respect of
statutory provisions which have ceased to be valid.
22 (1959) Supp 2 SCR 8
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
98
iv) Exclusive private management of a public temple would be
antithesis to the very character of a public temple. Reliance was placed on the
decision of this Court in Bala Shankar Mahashankar Bhattjee and others vs.
Charity Commissioner, Gujarat State23
.
46. Thereafter, the learned counsel for the parties advanced submissions
with regard to the Reports of the learned Amicus Curiae and Mr. Vinod Rai.
This exercise involved entering into various factual issues for the first time in
this Court. Since no adequate opportunity was afforded to various stakeholders
involved in the matter, we refrain from considering the issues arising from said
Reports.
47. In the end, a Note was given by the learned counsel for the appellants
about the composition of Committees to take care of the affairs of the Temple.
The Note was essentially in response to the affidavit of the Chief Secretary of
the State which was filed on 06.11.2014. The Note suggested constitution of
an Administrative Committee and an Advisory Committee as under:-
“1. The Petitioner, hereinafter referred to as the “Trustee”, is
placing below for the consideration of this Hon’ble Court his
proposal for the control and supervision of the affairs of Sree
Padmanabhaswamy Temple (the “Temple”). The Petitioner will
23 (1995) Supp 1 SCC 485
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
99
file an appropriate undertaking in terms of the proposal with such
modifications as may be directed by this Hon’ble Court.
2. The Trustee shall delegate his powers of administration under
Section 18(2) of the Travancore-Cochin Hindu Religious
Institutions Act, 1950 (the “Act”) to a Committee (the
“Administrative Committee”) which shall administer the
Temple through an Executive Officer to be appointed by the
Committee.
3. The administrative Committee shall consist of five members:
a) a retired Indian Administrative Service Officer of the rank of
Secretary to Government of Kerala (“the State Government”)
to be nominated by the Trustee in consultation with Government
of 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,
Government of 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
Section 2(aa) of the Act, as amended, for being appointed as
members of the Travancore Devaswom Board.
… … …
8. On all policy matters relating to temple administration
including the matters referred to in paragraph 11 below, the
Trustee shall be guided by the advice of the Sree
Padmanabhaswamy Temple Committee constituted under
Section 20 of the Act (the “Advisory Committee”).
9. The Advisory Committee shall consist of:
(a) A retired High Court Judge who shall be nominated
by the Chief Justice of the Kerala High Court and who shall
be the Chairperson of the Committee.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
100
(b) One eminent person to be nominated by the Trustee;
and
(c) A reputed chartered Accountant to be nominated by
the Chairperson in consultation with the Trustee.
The provisions in paragraphs 4 and 5 above shall apply
equally to the Advisory Committee.
10. The Advisory Committee shall ensure that regular annual
audit of the finances of the Temple is completed by a reputed
accounting firm, which shall be changed every three years.
11. The Administrative Committee shall not take any decision
on the following matters of policy except after obtaining the
approval of the Trustee:
(a) Any expense item exceeding Rs.15 lakhs per month;
(b) Any one-time expense of Rs.1 Crore;
(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
that would affect the religious sentiments of its devotees.”
48. On the other hand, the State also submitted a Note stating:-
“It is proposing the following administrative / legal alternative
measures for the administration of Sree Padmanabha Swamy
Temple by forming a Managing Committee on the model of the
Guruvayur Devaswom Managing Committee, constituted for
administering the activities of Guruvayur Temple. It is also
submitted that Govt. will enable that Committee to administer the
Sree Padmanabha Swamy Temple by amending Chapter III of the
TCHRI Act, 1950.
The following is extracted from the Preamble of the Guruvayur
Devaswom Act, 1978:
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
101
“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 of 1938, the administration,
control and management of the temple and its properties
and endowments had been vested in the hereditary
trustees, namely, the Zamorin Raja of Calicut and the
Karanavan for the time being of the Mallisseri Illom at
Guruvayur;
And whereas the administration and management of the said
Temple and its properties and endowments had deteriorated and
a situation had arisen rendering it expedient to reorganize, in the
interest of the general public, the scheme of Management of the
affairs of the Devaswom, the Guruvayur Devaswom Act, 1971,
was enacted to provide better management of the Devaswom in
suppression of the said scheme.”
In the present case, it is submitted that owing to a similar ground
of deteriorating condition of the Temple Administration, and
taking into consideration the rights of the devotees and erstwhile
“Royal Family” through the Padmanabhadasa, the State proposes
the following administrative / legal alternative for the
administration of Sree Padmanabha Swamy Temple.
… … …
3. Constitution of a Committee:
1. The Committee constituted shall consist of 8 members and
shall 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
of Scheduled Caste/ Scheduled Tribe and one shall be a woman
nominated by the Hindus among the Council of Ministers from
among persons having interest in the Temple.
d) A representative of the employee of the Devaswom
nominated by the Hindus among the Council of Ministers.
2. A person shall be disqualified for being nominated under
clause (c) of sub-section (1), if:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
102
(i) He believes the practice of untouchability or does not
profess the 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, elect
one of its members as Chairman.”
49. Before we consider the rival submissions, the unequivocal stand taken
by the appellants in the grounds of appeal that “the Temple is a public temple
and no claim can probably be made by the Petitioner or anyone to owning the
Temple or its treasures” and that what was being sought was only the right as a
trustee of the Temple to manage and administer it, must be noted at the outset.
The said stand was expressly referred to in the Order dated 21.07.2011 by this
Court, and subsequent Orders, and the consideration of the instant case has been
premised on the said stand.
50. In the backdrop of the facts and circumstances on record, the issues
concerning the status and entitlement of the appellant No.1 including the
relationship vis-à-vis the Temple are concerned, the controversy can be
considered under following five segments:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
103
A] Situation obtaining before and upto the date when the Covenant
was entered into in May 1949.
B] Effect of the Covenant that was entered into in May 1949.
C] Effect of the Constitution of India as it stood before the
Constitution (Twenty Sixth Amendment) Act, 1971 and of the
provisions of the TC Act.
D] Effect of the Constitution (Twenty Sixth Amendment) Act, 1971.
E] Effect of the death of the person who had signed the Covenant as
the Ruler of Travancore.
A] Situation obtaining before and upto the date when the Covenant was
entered into in May 1949
51. Special Leave Petition (Civil) No.11295 of 2011 from which the
present appeal arises, asserted:-
“1375 to 2011
A.D. (= 550
To 1186 M.E/
Malayalam Era)
Recorded evidence shows that the Sri
Padmanabhaswamy Temple,
Thiruvananthapuram temple was
administered by the Royal Family of
Venad/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 108th holiest abodes (‘Divya
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
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
104
posture (in eternal sleep of yognidra) lying
on Sri Anantha, the hooded snake. The city
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 belief is that when 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 establishment of the
Temple, the written submissions filed on behalf of the appellant No.1 state:-
“18. Although the origins of the temple are shrouded in the mists
of antiquity, it is believed that the then Maharaja of Travancore
established the Temple in or around 1375. According to the
legends surrounding the Temples set out in Emily Gilchrist
Hatch’s book titled “Travancore” (Oxford University Press,
1939), there are two separate versions of how the Temple came
to be built:
(a) ….[A] five headed cobra put the child in a hole in
the tree and spread his hood to provide shelter from
the sun. this child was the incarnation of God Vishnu.
The Pulaya couple daily offered milk and kunjee in a
half coconut shell. The Ruler of Travancore heard of
this and immediately had a temple built at the very
place.
(b)“…The second story also tells a child… After
several days of wandering in the open country, the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
105
hungary, distressed Swamiyar heard a child’s cry….
As he started towards the place, he heard again the
tingle of waist-bells and immediately a huge tree fell
to the ground. There before him lay God Vishnu on
his thousand-headed serprent…. It is said that tree
which crashed to earth was carved into the image of
Vishnu over which the then Raja of Travancore
erected a temple.”
In both legends, therefore, it is the Maharaja of Travancore
who is said to have founded the Temple.
19. After the Temple was engulfed in a huge fire in 1686,
the then Maharaja of Travancore rebuilt the Temple.”
53. The account given by the High Court in para 4 of the judgment under
appeal states that for over 200 years prior to the re-establishment of the princely
state by Marthand Varma, the Temple was under the control of ‘Ettarayogam’
(group of eight and a half) including ‘Ettuveettil Pillamars’ and then refers to
the battle between Marthand Varma and his loyalists on one hand and the
Ettuveettil Pillamars on the other, whereafter Marthand Varma took full control
of the State and the Temple. The High Court then states, “… it is he (Marthand
Varma) who reconstructed the Temple which was in bad shape after a major
fire took place years back and installed a new idol.”
54. Though there may be different accounts and beliefs with regard to the
origin and how the Temple was set up, every version accepts that the King of
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
106
Travancore had a role in the administration of the Temple to begin with, and
that he was the one who re-constructed the Temple after a major fire that
occurred in the year 1686, and installed a new idol and took full control of the
Temple. The King of Travancore was thus responsible 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 the management of the Temple, till the Covenant was
signed, had always been with the Kings of Travancore.
55. It is also asserted in the grounds in support of the appeal, that the royal
family of Travancore had been making endowments in favour of the Temple
and that Lord Padmanabha is considered as the family deity by the erstwhile
royal family. Some of the practices adverted to in the Special Leave Petition
were as under:-
“… …Historically, the petitioner and his predecessors have had a
very close association with the Padmanabhaswamy temple, and
holds a pre-eminent position in the rituals and practices of the
temple. Some of these are listed below:
i. From the time a female member of the erstwhile
Royal Family conceives, there are special poojas in the
temple at prescribed periods and recitation of personal
prayers;
ii. The Padmanabhadasa and the members of the royal
family escort the idols of Sree Padmanabha, Sree
Narasimha and Sree Krishna during the ‘Arattu’ procession
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
107
(Holy Bath of 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 Lord
Padmanabha before the sanctum sanctorium;
iv. Every female child, born in the erstwhile Royal
Family, is made a ‘Sevini’ of Lord Padmanabha through
prescribed rituals;
v. Special ceremonies are conducted at the time when
male members undergo ‘Upanayanam’ and at the time of
marriage of female members of the erstwhile Royal Family;
vi. The Padmanabhadasa has many obligations and
whenever he breaches them, he imposes a penalty on
himself by way of compulsory offerings to the Lord;
vii. The Padmanabhadasa has to take the permission of
the deity when he leaves the town as per custom and by
offering ‘pattu’ and ‘kanikka’ (silk and offerings), he also
has to make amends for his absence depending on the length
of absence;
viii. The Padmanabhadasa has an ‘ekantha darshan’ with
the 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 sent
form the temple to cover the body before cremation;
x. In all temple rituals, the Padmanabhadasa is an
obligatory participant;
xi. When the deity is taken out in procession, the
Padmanabhadasa leads the procession with drawn out
sword (udaval) alongwith the heir apparent. The
Padmanabhadasa accompanies the deity for the Palliveta on
both the festivals and does the vetta on the behalf of the
deity.”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
108
56. The assertions referred to above were not denied or traversed. As a
matter of fact, the stand in the affidavits filed on behalf of the State in the Courts
below, accepts the position of the erstwhile royal family vis-à-vis the Temple
and Sri Padmanabhaswamy. The affidavits were sworn by responsible officers
holding the posts of Joint Secretary and Additional Secretary in the State
Government. It was stated in both the affidavits;-
“… …There are also many temples owned by private Trustees
and local organization of Hindus too like the Attukal Bhagavathy
Temple, Pazhavangadi Ganpathy Temple etc. Sree Padmanabha
Swamy Temple is also such a family temple trust owned and
managed by the Travancore Palace … …
… …The traditional and customary belief that has been for long
recognized and accepted is that Sree Padmanabha Swamy Temple
belongs to “Sree Padmanabha Dasas”, the Royal family head of
Travancore Palace and they command high regard respect and
esteem form the public. … …”
57. Leaving aside the issue of ownership as such status is not claimed by
the appellant No.1 or any of the family members who have intervened, the fact
remains that it is well accepted that the management of the Temple had all along
been in the hands of the ruling family or the Travancore Palace. As stated by
the State, that has been the traditional and customary belief. Such management
has spanned, not for few years or decades, but dates back to centuries.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
109
58. The learned Amicus Curiae in his report dated 01.11.2012 had stated
about the Temple and some of the erstwhile Rulers of Travancore as under:-
“29. In this context, it may be necessary to mention that the Sree
Padmanabha Swamy Temple is an integral part of the traditions
of the Royal family of the erstwhile State of Travancore and also
the people of Kerala (including the residents of the ancient city of
Thiruvananthapuram). It is interesting to note that Ashwathi
Thirunal Gouri Lakshmi Bayi (one of the members of the Royal
family), in her book Sree Padmanabha Swamy Temple published
by the Bharatiya Vidya Bhavan, interestingly refers to the Prakrit
version and the final Sanskrit version of Sree Anandapuram from
Syanandoorapura. The Sree Padmanabha Swamy Temple is
connected to twenty four holy teerthams and is also linked with
certain other temples, many of which are in the State of Tamil
Nadu. It may be noted that even today, Mathilakom records or
the palm leaves scrolls which recorded the ancient history of the
Temple and that of the erstwhile State of Travancore are available
in the Temple premises and in the Kerala State Archives….
30. It must also be noted that the idol of Lord Padmanabha is
made using katu sharkara yogam (a complex mixture of 8 natural
ingredients) in which 12008 Salagramas were filled in. This idol
made using katu sharkara yogam was consecrated in the year
1739 under the aegis of the erstwhile ruler of Travancore, Veera
Marthanda Verma (1706-1758). Salagrama is not a mere stone
but a stone of longstanding tradition and spiritual potency in
which it is believed that Hari or Lord Vishnu resides (hence, yatha
salagrame hari). Thus, Eashwara or god manifests Himself in
saguna 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 the
potency of a mahakshetram or a great temple. Therefore, the
sanctity of Sree Padmanabha Swamy Temple is a thousand fold.
… … …
34. At this juncture, it would be appropriate to mention that the
Travancore Royal family is also called the Venadu Raja Vamsha
which is the off-shoot of Chera roya lineage and the Ayi royal
dynasty, and has always regarded Lord Padmanabha Swamy as
their tutelory Deity and this is confirmed by many historical
records where Lord Padmanabha is addressed as
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
110
‘yadavendrakuladaivatam’ or the family Deity of
yadavakshatriyas (the present Travancore royalty); thereby
confirming that Sree Padmanabha Swamy is the ‘kuladaivta’ of
the entire family. It may be noted that devotees other than royalty
have worshipped Lord Padmanabha Swamy as their ‘ishta daivta’
or God of one’s personal choice.
35. It was in 1731 A.D. that the first King of the erstwhile
Travancore Royal family, Sree Veera Marthanda Varma, was
anointed. He was succeeded by Rama Varma (1758-1798).
Moreover, the Royal family consisted of deeply devoted members
who were dedicated to the Temple and who believed that their
lives centred around Sree Padmanabha Swamy. In 1750 A.D., the
entire State of Travancore was gifted to this Deity by a Deed and
the Rulers became servants of the Lord, calling themselves as
Padmanabhadasa. It may also be noted that many of the
Maharajas were great composers of shlokas as well as music. In
fact, many of the Rulers were protectors of the Vedas and the
vedic tradition. Further, the Temple was governed by a council
of trustees called Ettara Yogam headed by the King.
36. One of the greatest Kings of the Royal family was Sri Swathi
Thirunal Maharaja Rama Varma (1813-1846) who was a great
patron of the arts, literature, music and modern science. He was
an extraordinary King who presented an incorruptible system of
governance, framed the first code of regulations of Travancore,
advanced English education, contributed to a collection of rare
manuscripts and undertook a large number of social welfare
measures. In fact, Sri Swathi Thirunal is regarded as one of the
four great vidwans of Carnatic music – they being Muthuswamy
Dikshitar, Thyagaraja, Shyamasastry and Swati Thirunal. The
Kings including Sri Swathi Thirunal donated their personal
wealth to the Temple and, as recorded by Dr. Ventkata
Subramanya Iyer in his brilliant book ‘Swathi Thirunal and his
music’, during his eventful life, once when one of his courtesans
presented a varnam in his honour, the King directed that it should
not be used because only Lord Padmanabha Swamy must be
lauded with music.”
59. The practices referred to in the earlier paragraph show that right from
the conception of a child upto the death of any member of the erstwhile royal
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
111
family, special prayers are offered and certain rituals are followed. 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 conducted at the time of
‘Upanayanam’ of a male member and marriage of a female member of the
erstwhile royal family. Even assuming that these practices are being or could
possibly be followed by other families as well, in addition to these features, the
facts that the Ruler is an obligatory participant 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 to take special permission whenever he leaves the town; and that
whenever the deity is taken out in procession, the Ruler leads the procession
with the sword drawn out, along with the heir apparent, establish the special
relationship that the erstwhile royal family in general and the Ruler in
particular, have always had with Sri Padmanabhaswamy. The ceremony of
Dedication undertaken by the then ruler in 1750 A.D. bears testimony to such
relationship as well as the deep devotion and sense of complete surrender
before Sri Padmanabhaswamy. “The Thrippati Danam”, the translation of
which is set out in paragraph 5, shows that “all the lands and functions together
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
112
with all rights and dignities, positions of honour and all other possessions” that
the royal family was enjoying hitherto before, were dedicated to Sri
Padmanabhaswamy. Even the royal sword was placed with utmost reverence
on the Ottakkal Mandapam leading to the Sanctum, which the King got back
from the high priest. Every further acquisition by the King was always
surrendered to Sri Padmanabhaswamy. The King and his successors thus ruled
and conducted themselves as “Padmanabhadasas” and agents of Sri
Padmanabhaswamy.
60. Tested on any parameter, such as historical accounts, popular and
customary beliefs, certain practices connected with the rituals and affairs of the
Temple that mandatorily require the presence and participation of the Ruler,
deep involvement of the members of ruling family and their connection with
the Temple and Sri Padmanabhaswamy at various stages of their lives, “The
Thrippati Danam” and its significance, and long recognised and accepted fact
that the management of the Temple had always been with the Ruler, lead us to
conclude that for centuries, the Temple had been under the exclusive
management of successive Rulers from the ruling family of Travancore and
that the Rulers of Travancore, till the signing of the Covenant, were in the
capacity as Managers or Shebaits of the Temple.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
113
The expression Shebait is derived from “sewa” which means service
and Shebait, in literal sense, means one who renders “sewa” to the idol or a
deity. Every Ruler of Travancore would call himself “Padmanabhadasa” i.e.
one who is engaged in the service of Sri Padmanabhaswamy.
61. The Travancore Interim Constitution Act, 1123, which came into force
on 24.03.1948 i.e. before the Covenant was entered into, is also a factor that
points in the direction of the aforesaid conclusion. In terms of this Act, all
matters connected with Sri Pandaravaka (which expression admittedly referred
to the Temple and the extensive lands belonging to Sri Padmanabhaswamy) as
well as Devaswoms and Hindu Religious Endowments were stated to be under
the exclusive control and supervision of the Ruler of Travancore. This Act by
itself does not determine the status of the Ruler of Travancore with respect to
Sri Pandaravaka and the Dewaswoms and Hindu Religious Endowments in
Travancore, but is indicative of the requisite intent on part of the Ruler of
Travancore to retain to himself the matters concerning administration and
management of Sri Pandaravaka and Dewaswoms and Hindu Religious
Endowments.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
114
62. Having considered the factual scenario, we must now consider the legal
character and incidents of Shebaitship. On the issue of the legal 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 are as follows:-
a) In Gossamee Sree Greedharreejee vs. Rumanlolljee Gossamee24 the
Privy Council stated:-
“According to Hindu law, when the worship of a thakoor has been
founded, the shebaitship is held to be vested in the heirs of the
founder, in default of evidence that he has disposed of it
otherwise, or there has been some usage, course of dealing, or
some circumstances to show a different mode of devolution. This
principle is illustrated by the decision in the case of Peet Koonwur
v. Chutter Dharee Singh25, and in the present case some of the
learned Judges of the High Court have affirmed it, while none has
expressed dissent from it. One learned Judge thought that the
principle does not apply to this case, because Dowjee was not the
founder of the Calcutta worship. But their Lordships adopt the
view of the other Judges, and holding that the mortal Dowjee was
the founder they must also hold that the Plaintiff is by general law
the shebait of that worship.”
(Emphasis added)
b) The afore-stated principles were expounded further by the Privy
Council in Vidya Varuthi Thirtha Swamigal vs. Balusami Ayyar and Ors.26
“It is also to be remembered that a "trust," in the sense in which
the expression is used in English law, is unknown in the Hindu
system, pure and simple. (J.G. Ghose, "Hindu Law," page 276.)
Hindu piety found expression in gifts to idols and images
24 16 M.I.A.137 : (1889) L.R. 16 I.A. 137
25 13 Suth. W.R. 396
26 AIR 1922 PC 123 : 48 I.A. 302
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
115
consecrated and installed in temples, to religious institutions of
every kind, and for all purposes considered meritorious in the
Hindu social and religious system: to Brahmans, Goswamis,
sanyasis, etc. When the gift was to a holy person, it carried with
it in terms or by usage and custom certain obligations. Under the
Hindu law the image of a deity of the Hindu pantheon is, as has
been aptly called, a "juristic entity," vested with the capacity of
receiving gifts and holding property. Religious institutions,
known under different names, are regarded as possessing the
same "juristic" capacity, and gifts are made to them eo nomine.
In many cases in Southern India, especially where the diffusion
of Aryan Brahmanism was essential for bringing the Dravidian
peoples under the religious rule of the Hindu system, colleges and
monasteries under the names of mutt were founded under spiritual
teachers of recognized sanctity. These men had and have ample
discretion in the application of the funds of the institution, but
always subject to certain obligations and duties, equally governed
by custom and usage. When the gift is directly to an idol or a
temple, the seisin to complete the gift is necessarily effected by
human agency. Called by whatever name, he is only the manager
and custodian of the idol or the institution. In almost every case
he is given the right to a part of the usufruct, the mode of
enjoyment and the amount of the usufruct depending again on
usage and custom. In no case was 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 obligations and duties resting on
him, he is answerable as a trustee, in the general sense, for
maladministration.”
(Emphasis added)
c) In Bhaba Tarini Debi vs. Asha Lata Debi27
, while dealing with the
rights of a Shebait, the Privy Council stated:-
“The shebait has certainly a right of property in his office and it
may be correct to say that he has some sort of beneficial interest
in the debuttar property, but the idol is the owner of the property
and the limit set to the shebait’s power of disposition is set, not to
preserve the interest of the next shebait, but to maintain and
preserve by proper management the endowment or religious
institution.”
27 AIR 1943 PC 89 : (1943) ILR 2 P.C. 137
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
116
The following passage from the decision of the High Court (per B.K.
Mukherjea, J.28) which was under appeal, was quoted by the Privy Council
with approval:-
“To me it seems that both the elements of office and
property, of duties and personal interest, are mixed up and
blended together in the conception of shebaitship. One of the
elements cannot be detached from the other. The entire rights
remain with the grantor when a deity is founded and it is
open to him to dispose of these rights in any way he likes. If
there is no disposition, shebaitship remains like any other
heritable property in the line of the founder and each
succeeding shebait succeeds to the rights by virtue of his
being an heir to his immediate predecessor and not to the
original grantor. If it is disposed of completely and
absolutely in favour of another person, there remains nothing
in the grantor except the possibility of a reverter when there
is a failure of extinction of the line of shebaits indicated by
him. If, on the other hand, the founder has parted with his
rights only in a partial manner for the lifetime of the grantee
the residue still remains in him and his heirs, and on the death
of the grantee, the heir of the founder living at the time is
entitled to the shebaitship. If the grantee in such cases
happens to be the sole heir of the founder upon whom the
residuary right devolves at the same time and he becomes the
shebait under law as well, then, whether or not we invoke the
technical doctrine of merger or coalescence of the particular
estate with the residue, his position in my opinion is that of
an absolute shebait whose rights devolve upon his heirs and
not upon the heirs of the founder at his death.”
(Emphasis added)
28 Later, Chief Justice of India.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
117
d) In the decision rendered in May 1951 in Angurbala Mullick21
, a Bench
of four Judges of this Court had an occasion to consider the legal 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
precise definition but its implications are fairly well established.
It is settled by the pronouncement of the Judicial Committee in
Vidya Varuti v. Balusami26 that the relation of a shebait in regard
to debutter property is not that of a trustee to trust property under
the English law. In English law the legal estate in the trust
property vests in the trustee who holds it for the benefit of cestui
que trust. In a Hindu religious endowment on the other hand the
entire ownership of the dedicated property is transferred to the
deity or the institution itself as a juristic person and the shebait or
mahant is a mere manager.
But though a shebait is a manager and not a trustee in the technical
sense, it would not be correct to describe the shebaitship as a mere
office. The shebait has not only duties to discharge in connection
with the endowment, but he has a beneficial interest in the
debutter property. As the Judicial Committee observed in the
above case, in almost all such endowments the shebait has a share
in the usufruct of the debutter property which depends upon the
terms of the grant or upon custom or usage. Even where no
emoluments are attached to the office of the shebait, he enjoys
some sort of right or interest in the endowed property which
partially at least has the character of a proprietary right. Thus, in
the 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 is the presence of this personal or beneficial
interest in the endowed property which invests shebaitship with
the character of proprietary rights and attaches to it the legal
incidents of property. This was elaborately discussed by a Full
Bench of the Calcutta High Court in Manohar Mukherji v.
Bhupendra Nath Mukherji30 and this decision of the Full Bench
29 As the learned Chief Justice then was
30 I.L.R.(1933) 60 Cal. 452
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
118
was approved of by the Judicial Committee in Ganesh Chunder
Dhur v. Lal Behary31 and again in Bhabatarini v. Ashalata27. The
effect of the first two decisions, as the Privy Council pointed out
in the last case, was to emphasize the proprietary element in the
shebaiti right, and to show that though in some respects
anomalous, it was an anomaly to be accepted as having been
admitted into Hindu law from an early date. "According to Hindu
law," observed Lord Hobhouse in Gossamee Sree
Greedharreejee v. Rumanlolljee Gossamee24
,
 when the worship
of a Thakoor has been founded, the shebaitship is held to be
vested in the heirs of the founder, in default of evidence that he
has disposed of it otherwise, or there has been some usage, course
of dealing, or some circumstances to show a different mode of
devolution.
Unless, therefore, the founder has disposed of the shebaitship in
any particular manner - and this right of disposition is inherent in
the founder - or except when usage or custom of a different nature
is proved to exist, shebaitship like any other species of heritable
property follows the line of inheritance from the founder.”
(Emphasis added)
63. Soon thereafter, the author of the leading Judgment in Angurbala
Mullick21, delivered Tagore Law Lectures in August 1951 which were then
published in the form of a comprehensive book under the caption “The Hindu
Law of Religious Endowments and Charitable Trusts”. After dealing with
endowments created by dedication of water tanks and similar works for general
consumption, in the Fourth Edition of the Book32, it is stated:-
“1.54 Administrators or managers of endowments are
trustees in the general sense:-
31 (1935-36) 63 I.A. 448
32 Edited by Hon. P.B. Gajendragadkar, former Chief Justice of India
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
119
With regard to all other types of endowment it is necessary for the
purpose of carrying out the intentions of the donor that somebody
should be entrusted with the management or administration
thereof. As was observed by Mukherjee. J. in Manohar vs.
Bhupendra30
, in ancient times, except in cases of property
dedicated to a brotherhood of ascetics, all endowments were
administered ordinarily by the founder himself and after his death
by his heirs. This was the case not only with regard to temples but
also in respect of non-religious charitable institutions like
choultries, Sadabratas etc. It was only in case of public temples
that the practice of appointing shebaits was generally resorted to.
But whoever may be the person in whom the duty of
administration is vested, whether it is the shebait or archaka of a
temple or the Mohant of a religious institution and whether or not
such person is the heir of the original founder, he must be deemed
to be in the position of a trustee with regard to the endowed
property. As I have said already he may not be a trustee in the
sense in which the expression is used in English law. To quote
the language of the Judicial Committee in Vidyavarathi vs.
Baluswami26 as in no case is the property conveyed to or vested
in him he is not a trustee under the English law’; but it was pointed
out by the Privy Council that in view of the obligations resting on
him he is answerable as a trustee in the general sense. I have
already pointed out that the word “Trust” in English law involves
a highly technical idea which owes its origin to purely historical
circumstances and of which no parallel exists in any other system
of law.”
(Emphasis added)
 With regard to the nature of rights of a Shebait, the author stated:
“5.1A. Shebait the human ministrant of the deity. – In my last
lecture33, I have dealt with the general features of a religious
endowment which is known as Debutter, and which arises on
dedication or gift of property to an idol. It would now be
necessary to enter into details and discuss how a Debutter is
managed and administered. As has been said already, “it is in an
ideal sense that the dedicated property vests in an idol,” and in the
nature of things the possession and management of it must be
entrusted to some person as Shebait or manager.
33 Chapter 4 – Religious Trusts in favour of Idols (Debutter)
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
120
“It would seem to follow,” the Judicial Committee observed in
Prosonna Kumari Debya vs. Golab Chand Baboo,34 “that the
person so entrusted must, of necessity, be empowered to do
whatever may be required for the service of the idol and for the
benefit and preservation of its property, at least to as great as the
manager of an infant heir. If this were not so, the estate of the
idol might be destroyed or wasted, and its worship discontinued
for want of necessary funds to preserve and maintain them.” This
human ministrant of the deity, who is its manager and legal
representative, is known by the name of Shebait in Bengal and
Northern India. He is called the Dharmakarta in the Tamil and
Telugu districts, Panchayetdar in places like Tanjore and Urallen
in Malabar. He is the person entitled to speak on behalf of the
deity on earth and is endowed with authority to deal with all its
temporal affairs. As regards the temple property, the manager is
in the position of a trustee, but as regards the service of the temple
and the duties that appertain to it he is rather in the position of the
holder of an office of dignity35
. For convenience I will call the
manager by the general name of Shebait, though I am aware that
a distinction has been made in some cases between a Shebait and
a Dharmakarta36
.
… … …
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
technical sense, it would not be correct to describe shebaitship as
a mere office. The Shebait has not only duties to discharge in
connection with the endowment, he has also a personal interest in
it. As the Judicial Committee pointed out in the above case, in
almost all Debutter endowments, the Shebait has a share in the
usufruct of the Debutter property, which depends either on the
terms of the grant or upon custom or usage. Even when no
emoluments are attached to the office of a Shebait, he enjoys
some sort of right or interest in the endowed property which has
partially at least the characteristics of a proprietary right. You
shall see later on37 that although the Shebait’s power to alienate
the Debutter property is very much limited and can be exercised
only when there is a justifying legal necessity or benefit to 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 approving
Vidyapurma vs. Vidyanidhi (1904) I.L.R. 27 Mad. 435
37 Chapter 6 (Administration of Debutter: Rights, Duties and Powers of a Shebait)
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
121
deity, yet he can create derivative tenures in respect of the
endowed property, which even if not supported by legal necessity
cannot be impeached so long as he is alive and remains in office.
The Shebait therefore has to some extent the rights of a limited
owner. It has now been decided by a Full Bench of the Calcutta
High Court30 after an elaborate review of all authorities that
shebaitship is property, with regard to the disposition of which
the rule in Tagore vs. Tagore38 is applicable, and this decision
has been approved of by the Privy Council in Ganesh Chandra
vs. Lal Behari31 and again in Bhabatarini vs. Ashalata27. In
Janki Raman vs. Koshalyanandan39, the founder of an
endowment had provided that the office of shebaitship should be
held by three brothers and that it should devolve on their heirs.
One of the brothers having relinquished his right in favour of the
other two brothers, it was held that the devolution of the office
was governed by the general law of succession relating to
property, and that a relinquishment by the holder of an office was
not binding upon his heirs and could not enure beyond his
lifetime.
5.6A. Shebaitship remains in the founder and his heirs unless
disposed of. - When a deity is installed, the shebaitship remains
in he founder and his heirs. “According to Hindu law,” thus
observed Lord Hobhouse in Gossamee Sree Greedhareejee vs.
Ruman Lalljee24
 - and this observation has been reiterated in
numerous cases since then – “when the worship of a Thakoor has
been founded, the shebaitship is held to be vested in the heirs of
the founder in default of evidence that he has disposed of it
otherwise, or there has been some usage, course of dealing, or
some circumstances to stow a different mode of devolution.”
Unless therefore the founder has disposed of the shebaitship in
any particular way and except when an usage or custom of a
different nature is proved to exist, shebaitship like any other
species of heritable property follows the line of inheritance from
the founder.
… … …
5.31. Extinction of the life of Shebaits. – When the line of
Shebaits laid down by the founder is extinct, or when the Shebait
to whom a power of nomination is given does not exercise the
38 9 B.L.R. 377
39 A.I.R. 1961 Pat. 293
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
122
power, the managership reverts to the founder who endowed the
property or his heirs40
.
In case the line of Shebaits is extinct, there is always an ultimate
reversion to the founder or his heirs and strictly speaking, no
escheat arises so far as the devolution of Shebaitship is concerned.
But cases may theoretically be concerned where the founder also
has left no heirs; and in such cases the founder’s properties may
escheat to the State together with the endowed property. In very
rare circumstances like these, the right of the State would possibly
be the same as those of the founder himself, and it would be for
the State to appoint a Shebait for the Debutter property. It cannot
be said that the State receiving a dedicated property by escheat
can put an end to the trust and treat it as secular property.
Some observations occur in the judgment of Muthuswami Ayyar
and Shephard, JJ. In Mallan v. Purusothoma41
, which would
seem to suggest that the Government getting the property by right
of escheat can put an end to an arrangement made by the original
owners under which a certain property was kept undivided for
being used for the worship of a deity. There is, however, no
finding in this case that the property was actually dedicated to the
deity, and from the observations of the High Court it appears that
there was only a personal arrangement between the co-sharers
under which it was excluded from partition.”
(Underlined by us)
64. In the decision in Angurbala Mullick21 as well as in the Book as stated
above, reference was made to the Full Bench decision of the Calcutta High
Court in Manohar Mukherjee vs. Bhupendra Nath Mukherjee and Ors.30
,
where one of the issues for consideration was: whether founder of a Hindu
debutter was competent to lay down rules to govern the succession to the office
40 Sabitri Thakurani vs. F.A. Savi, I.L.R. 12 Pat. 359; Jagannath v. Ranjit Singh,
I.L.R. 25 Cal. 354
41 I.L.R. 12 Mad. 287, 291.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
123
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; in
reality the property dedicated is in the nature of an ownerless
thing. In ancient times, except in cases of property dedicated to a
brotherhood of sanyasis, all endowments ordinarily were
administered by the founder himself and after him his heirs. The
idea of appointing a shebait is of more modern growth. When a
Hindu creates an endowment, its management is primarily in him
and his heirs, and unless he appoints a shebait, he himself fills
that office and in him rests that limited ownership,-
notwithstanding that, on the one hand, he is the donor and, on the
other, the recipient on behalf of the deity, the juridical personwhich has to be exercised until the property offered to the deity
has been suitably disposed of. … … … This idea of limited
ownership is the essence of the position of the manager or
custodian of a dedicated property, by whatever name he may be
called. That this idea is the only basis on which decisions of the
highest authority as regards the rights and powers of shebaits may
be justified will be seen hereafter when some of these decisions
will be referred to.
… … …
26. Shebaitship in its true legal conception involves two ideas:
The ministrant of the deity and its manager; it is not a bare office
but an office together with certain rights attached to it. A shebait's
position towards the debutter property is not similar to that in
England of a trustee towards the trust property; it is only that
certain duties have to be performed by him which are analogous
to those of trustees. … …”
(Emphasis added)
65. On 16.03.1954, a Bench of seven Judges of this Court speaking through
B.K. Mukherjea, J.29 held in The Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
124
Mutt42
, inter alia, that what had been laid down in series of decisions with
regard to the rights of a Shebait would apply with equal propriety to the office
of a Mahant. It was stated:-
“As regards the property rights of a Mathadhipati, it may not be
possible to say in view of the pronouncements of the Judicial
Committee, which have been accepted as good law in this country
ever since 1921, that a Mathadhipati holds the Math property as a
life tenant or that his position is similar to that of a Hindu widow
in respect to her husband’s estate or of an English Bishop holding
a benefice. He is certainly not a trustee in the strict sense. He may
be, as the Privy Council26 says, a manager or custodian of the
institution who has to discharge the duties of a trustee and is
answerable as such; but he is not a mere manager and it would not
be right to describe Mahantship as a mere office. A superior of a
Math has not only duties to discharge in connection with the
endowment but he has a personal interest of a beneficial character
which is sanctioned by custom and is much larger than that of a
Shebait in the debutter property. It was held by a Full Bench of
the Calcutta High Court
30 that Shebaitship itself is property, and
this decision was approved of by the Judicial Committee in
Ganesh v. Lal Behary31 and again in Bhabatarini v. Ashalata27
.
The effect of the first two decisions, as the Privy Council pointed
out in the last case, was to emphasise the proprietary element in
the Shebaiti right and to show that though in some respects an
anomaly, it was an anomaly to be accepted as having been
admitted into Hindu law from an early date. This view was
adopted in its entirety by this Court in Angurbala v. Debabrata21
and what was said in that case in respect to Shebaiti right could,
with equal propriety, be applied to the office of a Mahant. Thus
in the conception of Mahantship, as in Shebaitship, both the
elements of office and property, of duties and personal interest
are blended together and neither can be detached from the other.
The personal or beneficial interest of the Mahant in the
endowments attached to an institution is manifested in his large
powers of disposal and administration and his right to create
derivative tenures in respect to endowed properties; and these and
other rights of a similar character invest the office of the Mahant
with the character of proprietary right which, though anomalous
to some extent, is still a genuine legal right. It is true that the
42 (1954) SCR 1005
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
125
Mahantship is not heritable like ordinary property, but that is
because of its peculiar nature and the fact that the office is
generally held by an ascetic, whose connection with his natural
family being completely cut off, the ordinary rules of succession
do not apply.
(Emphasis added)
There is no reason why the word “property”, as used in Article
19(1)(f) of the Constitution, should not be given a liberal and wide
connotation and should not be extended to those well recognised
types of interest which have the insignia or characteristics of
proprietary right. As said above, the ingredients of both office and
property, of duties and personal interest are blended together in
the rights of a Mahant and the Mahant has the right to enjoy this
property or beneficial interest so long as he is entitled to hold his
office. To take away this beneficial interest and leave him merely
to the discharge of his duties would be to destroy his character as
a Mahant altogether. It is true that the beneficial interest which he
enjoys is appurtenant to his duties and as he is in charge of a
public institution, reasonable restrictions can always be placed
upon his rights in the interest of the public. But the restrictions
would cease to be reasonable if they are calculated to make him
unfit to discharge the duties which he is called upon to discharge.
A Mahant’s duty is not simply to manage the temporalities of a
Math. He is the head and superior of spiritual fraternity and the
purpose of Math is to encourage and foster spiritual training by
maintenance of a competent line of teachers who could impart
religious instructions to the disciples and followers of the Math
and try to strengthen the doctrines of the particular school or
order, of which they profess to be adherents. This purpose cannot
be served if the restrictions are such as would bring the
Mathadhipati down to the level of a servant under a State
department. It is from this standpoint that the reasonableness of
the restrictions should be judged.”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
126
66. Within few months, in the decision in Mahant Sital Das vs. Sant Ram
and others43 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 parties
primarily centre round the point as to whether after the death
of Kishore Das, the plaintiff or the defendant No.3 acquired
the rights of Mahant in regard to the Thakardwara in dispute.
The law is well settled that succession to Mahantship of a
Math or religious institutions is regulated by custom or usage
of the particular institution, except where a rule of
succession is laid down by the founder himself who created
the endowment. As the Judicial Committee laid down –
Vide Genda Puri v. Chhatar Puri44
, in one of the many cases
on this point: “in determining who is entitled to succeed as
Mohunt, the only law to be observed is to be found in the
custom and practice, which must be proved by testimony,
and the claimant must show that he is entitled according to
the custom to recover the office and the land and property
belonging to it……………… Mere infirmity of the title of the
defendant, who is in possession, will not help the plaintiff:.”
(Emphasis added)
67. In His Holiness Digya Darshan Rajendra Ram Doss v. Devendra
Doss45, a Bench of three Judges of this Court observed:-
“7. In our opinion, the rule of custom should prevail in all cases
and if any aberrations have to be corrected such correction must
take us in the direction of re-establishing the rule of custom. To
that extent the principle laid down in the case of Annasami Pillai
v. Ramakrishna Mudaliar46 is a correct principle and has to be
43 AIR 1954 SC 606
44 13 Ind App – page 105 (PC)(A)
45 (1973) 1 SCC 14
46 ILR 28 Mad 219
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
127
followed. That, however, does not resolve the difficulty in this
case. Assuming that Chetan Doss was not a validly appointed
Mahant so that his period of office is to be ignored, the question
still arises whether in making a reversion to the customary rule of
succession to the office of a Mahant such reversion is to operate
from the point where Chetandoss’ period ended or from the point
when this had commenced. It is only an accident that in this case
Chetandoss has a very brief period of office so that on his death
it was at least possible to find one surviving disciple of the
Mahant who held the office before Chetan Doss succeeded him.
In most cases if there is a break in the customary rule it may not
at all be possible to revert back to the customary succession if one
has to start from the point where the original break had
commenced. In such cases even if it may be possible to revert to
the customary practice, it may not be possible to go back to the
point where the customary line of succession had its original
break. Thus, in this case though it has been possible to trace at
least one person who was a disciple of Narayan Doss after whose
death the customary practice was broken and the office handed
over to an alleged interloper, even this lone survivor of the
original line of succession is not a person who is competent to
become the Mahant by the immemorial custom of the Mutt.
Therefore, it is not possible at all to re-establish the customary
line of succession if one treats the period of Chetan Doss’
Mahantship as altogether non-existing. If we have to revert to the
custom of the Mutt we cannot do so from the point of time when
Narayan Doss died and Chetan Doss became the Mahant. We
have to do so from the point when Chetan Doss died. After all,
Chetandoss has been unquestionably the Mahant of the Mutt. It is
true that on a subsequent re-examination of the whole matter,
doubts have been cast on his title for the office but by common
acceptance of the Chelas of the Mutt he had become the Mahant
and had remained a Mahant till his death. Ignoring the fact that he
was really the Mahant of this Mutt for a specific period does not
help us to re-establish the rule of custom prevailing in this Mutt.
The only possible way in which the old custom may be reestablished is by making a fresh start from the point of the death
of Chetandoss and that can only be done by allowing Devendra
Doss to be the Mahant. The High Court has come to a clear
finding that Devendra Doss is a North-Indian Brahmin and is
therefore fit to hold the office of a Mahant according to the
custom of this Mutt. The High Court has also found that he was
the senior-most disciple of Chetandoss who had been the reigning
Mahant up to the point of time when the dispute regarding
succession arose. If Rajendra Ram Doss’ right to become the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
128
Mahant be rejected on the ground that Chetandoss was perhaps
an interloper the whole line of succession will be broken beyond
repair or redemption, for, once it is accepted that Rajendra Ram
Doss is not a North-Indian Brahmin there is no other living
disciple of Narayan Doss who could restore the original line of
succession. In our view it is not open to us to lay down a new rule
of succession or to alter the rule of succession completely. The
only way we can save the custom is by accepting something as
fact which has so far been accepted by everybody concerned with
the Mutt as a fact and which cannot any longer be undone without
demolishing altogether the custom of the Mutt. In these
circumstances we hold that Devendra Doss is entitled to succeed
Chetan Doss as his senior-most disciple on the strength of the
immemorial custom of this Mutt.”
(Emphasis added)
68. In Profulla Chorone Requitte20
, the principles were summed up by this
Court as under:-
“20. Before dealing with these contentions, it will be appropriate
to have a clear idea of the concept, the legal character and
incidents of shebaitship. Property dedicated to an idol vests in it
in an ideal sense only; ex necessitas, the possession and
management has to be entrusted to some human agent. Such an
agent of the idol is known as shebait in Northern India. The legal
character of a shebait cannot be defined with precision and
exactitude. Broadly described, he is the human ministrant and
custodian of the idol, its earthly spokesman, its authorised
representative entitled to deal with all its temporal affairs and to
manage its property. As regards the administration of 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,
because under Hindu Law, property absolutely dedicated to an
idol, vests in the idol, and not in the shebait. Although the debutter
never vests in the shebait, yet, peculiarly enough, almost in every
case, the shebait has a right to a part of the usufruct, the mode of
enjoyment, and the amount of the usufruct depending again on
usage and custom, if not devised by the founder.
(Emphasis added)
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
129
21. As regards the service of the temple and the duties that
appertain to it, he is rather in the position of the holder of an
office; but even so, it will not be quite correct to describe
shebaitship as a mere office. “Office and property are both
blended in the conception of shebaitship”. Apart from the
obligations and duties resting on him in connection with the
endowment, the shebait 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 species
of heritable property. It follows that, where the founder does not
dispose of the shebaiti rights in the endowment created by him,
the shebaitship devolves on the heirs of the founder according to
Hindu Law, if no usage or custom of a different nature is shown
to exist. [Gossamee Shree Greedharreejee v. Ramanlaljee.
24]
23. Then, there is a distinction between a public and private
debutter. In a public debutter or endowment, the dedication is for
the use or benefit of the public. But in a private endowment, when
property is set apart for the worship of a family idol, the public
are not interested. The present case is one of a private debutter.
The distinction is important, because the results logically
following therefrom 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 an
end to the trust or use the trust fund for any purpose and divert it
from its original object. Whether this principle applies to a private
endowment or debutter created under Hindu Law, is a question
on which authorities are not agreed. In Doorganath Roy v. Ram
Chunder Sen47 it was observed that while the dedication is to a
public 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
family might give the (debutter) estate another direction” and turn
it into a secular estate.
25. Subsequently, in Pramatha Nath Mullick v. Pradhyumna
Kumar Mullick48 the Judicial Committee clarified that the
property cannot be taken away from the idol and diverted to other
purposes without the consent of the idol through its earthly agents
47 LR 4 IA 52 : ILR 2 Cal 233
48 52 IA 245 : AIR 1925 PC 139
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
130
who, as guardians of the deity, cannot in law consent to anything
which may amount to an extinction of the deity itself.”
69. Recently, the Constitution Bench of this Court in M. Siddiq (dead)
through LRs vs. Mahant Suresh Das and others (Ram Janmabhumi Temple
Case)49 inter alia, dealt with the role and position of a shebait. After
considering the decisions on the point, it was stated:-
“425. Courts recognise a Hindu idol as the material embodiment
of a testator’s pious purpose. Juristic personality can also be
conferred on a Swayambhu deity which is a self-manifestation in
nature. An idol is a juristic person in which title to the endowed
property vests. The idol does not enjoy possession of the property
in the same manner as do natural persons. The property vests in
the idol only in an ideal sense. The idol must act through some
human agency which will manage its properties, arrange for the
performance of ceremonies associated with worship and take
steps to protect the endowment, inter alia by bringing proceedings
on behalf of the idol. The shebait is the human person who
discharges this role.
… … …
429. The recognition of a person or a group of persons as shebaits
is a substantive conferment of the right to manage the affairs of
the deity. A necessary adjunct of the status of a shebait, is the
right to brings actions on the behalf of an idol and bind it and its
properties to the outcomes. The purpose for which legal
personality is conferred upon an idol as the material embodiment
of the pious purpose is protected and realised through the actions
of the human agent, that is, the shebait. The shebait is entrusted
with the power and the duty to carry out the purpose of the donor
in respect of the idol and its properties. In the vast majority of
cases, a shebait is appointed in accordance with the terms of a
deed of dedication by which property is endowed to an idol. It is
for the protection of this property that the law recognises either
49 (2020) 1 SCC 1
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
131
the donor or a person named in the deed of endowment as the
shebait. In the absence of an expressly appointed or identified
shebait, the law has ensured the protection of the properties of the
idol by the recognition of a de facto shebait. Where a person is in
complete and continuous management of the deity’s affairs
coupled with long, exclusive and uninterrupted possession of the
appurtenant property, such a person 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 the course of the judgment.
(Emphasis added)
… … …
434. In addition to the duties that must be discharged in relation
to the debutter property, a shebait may have an interest in the
usufruct of the debutter property. In this view, shebaitship is not
an office simpliciter, but is also property for the purposes of
devolution50
. This view has been affirmed by this Court in
Angurbala Mullick v. Debabrata Mullick21. The controversy in
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 minor
son of the shebait born from his first marriage who was the
respondent. It was contended that the office of shebaitship would
devolve in accordance with the Hindu Women’s Right to Property
Act, 1937. B.K. Mukherjea, J. speaking for a four-Judge Bench
of this Court accepted this contention and held: (Angurbala
Mullick case21 (AIR p. 296, para 11).
“11. … But though a shebait is a manager and not a
trustee in the technical sense, it would not be correct to
describe the shebaitship as a mere office. The shebait
has not only duties to discharge in connection with the
endowment, but he has a beneficial interest in the
debutter property. As the Judicial Committee observed
in the above case, in almost all such endowments the
shebait has a share in the usufruct of the debutter
property which depends upon the terms of the grant or
upon custom or usage. Even where no emoluments are
attached to the office of the shebait, he enjoys some sort
of right or interest in the endowed property which
50 Approved by the Privy Council in Ganesh Chunder Dhur v. Lal Behary Dhur, 1936 SCC
OnLline PC 53 : (1935-36) 63 IA 448 and Bhabatarini Debi v. Ashalata Debi, 1943 SCC
OnLine PC 1 : (1942-43) 70 IA 57
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
132
partially at least has the character of a proprietary right.
Thus, in the 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 is the
presence of this personal or beneficial interest in the
endowed property which invests shebaitship with the
character of proprietary rights and attaches to it the
legal incidents of property.”
The Court held that a shebait has a beneficial interest in the
usufruct of the debutter property. This beneficial interest is in the
form of a proprietary right. Though the role of the shebait is
premised on the performance of certain duties for the idol and the
benefits are appurtenant, neither can be separated from the other.
Thus, office and property are both blended in shebaitship, the
personal interest of a shebait being appurtenant to their duties.51
”
70. Reliance was however placed by Mr. Gupta, learned Senior Advocate
on the decision of this Court in Tilkayat Shri Govindlalji Maharaj v. The State
of Rajasthan and others52 to submit that mere right to manage the debutter
property when no emoluments were being drawn by the Manager was not found
to be protected under Articles 19(1)(f) and 31(2) of the Constitution of India by
a Bench of five Judges of this Court. This Court, speaking through
Gajendragadkar, J. (as the learned Chief Justice then was) had observed:-
“The temple of Shrinathji at Nathdwara holds a very high place
among the Hindu temples in this country and is looked upon with
great reverence by the Hindus in general and the Vaishnav
followers of Vallabha in particular. As in the case of other ancient
51 Affirmed in Badri Nath v. Punna, (1979) 3 SCC 71: Profulla Chorone Requitte v. Satya
Chorone Requitte, (1979) 3 SCC 409
52 (1964) 1 SCR 561
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
133
revered Hindu temples, so in the case of the Shrinathji temple at
Nathdwara, mythology has woven an attractive web about the
genesis of its construction at Nathdwara. Part of it may be history
and part may be fiction, but the story is handed down from
generation to generation of devotees and is believed by all of them
to be true.
… … …
The question as to whether a Hindu temple is private or public
has often been considered by judicial decision. A temple
belonging to 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 religious reputation of the founder may be of such a high
order that the private temple founded by him may attract devotees
in large numbers and the mere fact that a large number of devotees
are allowed to worship in the temple would not necessarily make
the private temple a public temple. On the other hand, a public
temple can be built by subscriptions raised by the public and a
deity installed to enable all the members of the public to offer
worship. In such a case, the temple would clearly be a public
temple. Where evidence in regard to the foundation of the temple
is not clearly available, sometimes, judicial decisions rely on
certain other facts which are treated as relevant. Is the temple
built in such an imposing manner that it may prima facie appear
to be a public temple? The appearance of the temple of course
cannot be a decisive factor; at best it may be a relevant factor.
Are the members of the public entitled to an entry in the temple?
Are they entitled to take part in offering service and taking
Darshan in the temple? Are the members of the public entitled to
take part in the festivals and ceremonies arranged in the temple?
Are their offerings accepted as a matter of right? The
participation of the members of the public in the Darshan in the
temple and in the daily Acts of worship or in the celebration of
festival occasions may be a very important factor to consider in
determining the character of the temple….
…..If the temple is a public temple, under Hindu Law the idol of
Shrinathji is a juridical person and so, the ownership of the temple
and all its endowments including offerings made before the idol
constitute the property of the idol….
… … …
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
134
That takes us to the question as the nature and extent of the
Tilkayat’s rights in regard to the temple property. It is clear that
the Tilkayat never used any income from the property of the
temple for his personal needs or private purpose. It is true that
the learned Attorney General suggested that this consistent course
of conduct spreading over a large number of years was the result
of what he described as self-abnegation on the part of the tilkayats
from generation to generation and from Tilkayat’s point of view,
it can be so regarded because the Tilkayat thought and claimed
that the temple and his properties together constituted his private
property. But once we reach the conclusion that the temple is a
public temple and the properties belonging to it are the properties
of the temple over which the Tilkayat has no title or right, we will
have to take into account the fact that during the long course of
the management of this temple, the Tilkayat has never claimed
any proprietary interest to any part of the usufrcut of the
properties of the temple for his private personal needs, and so,
that proprietary interest of which Mr. Ameer Ali spoke in dealing
with the position of the Mahant and the Shebait and to which this
Court referred in the case of commissioner, Hindu Religious
endowments, Madras42 is lacking in the present case. What the
Tilkayat can claim is merely the right to manage the property, to
create lease in respect of the properties in a reasonable manner
and the theoretical right to alienate the property for the purpose
of the temple; and be it noted that these rights could be exercised
by the Tilkayat under the absolute and strict supervision of the
Darbar of Udaipur. Now, the right to manage the property
belonging to the temple, or the right to create a lease of the
property on behalf of the temple, or the right to alienate the
property for the purpose of the temple under the supervision of
the Darbar cannot, in our opinion, be equated with the totality of
the powers generally possessed by the Mahant or even the
Shebait, and so, we are not prepared to hold that having regard to
the character and extent of the rights which can be legitimately
claimed by the Tilkayat even on the basis that he was a Mahant
governed by the terms of the Firman, amount to a right to property
under Article 19(1)(f) or constitute property under Article 31(2).
(Emphasis added)
Besides, we may add that even if it was held that these rights
constituted a right to hold property their regulation by the relevant
provisions of the Act would undoubtedly be protected by Art.
19(5). The temple is a public temple and what the legislature has
purported to do is to regulate the administration of the properties
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
135
of the temple by the Board of which the Tilkayat is and has to be
a member. Having regard to the large estate owned by the
Tilkayat and having regard to the very wide extent of the offerings
made to the temple by millions of devotees from day to day; the
legislature was clearly justified in providing for proper
administration of the properties of the temple. The restrictions
imposed by the Act must, therefore, be treated as reasonable and
in the interests of the general public.”
71. In the aforesaid case, this Court was called upon to consider the matter
in the context of challenge to the Nathadwara Temple Act, 1959 (Rajasthan Act
13 of 1959), inter alia, on the grounds that said Act violated the rights
guaranteed under Articles 19(1)(f), 25(1), 26 (b) & (c) and 31(2) of the
Constitution. The Act under challenge, enacted by the State, had sought to
change the management which was earlier in the hands of the Tilkayat. On
facts, it was noticed that the petitioner therein was appointed as Tilkayat
(Manager of the Temple) under a Firman issued by the Rana of Udaipur on
December 31, 1934 which provided that the Udaipur Darbar had absolute right
to supervise that the property dedicated to the shrine was used for legitimate
purpose and to take any measures for the management of the shrine. It was
held by this Court that said Firman was law by which the affairs of said temple
and succession to the office of the Tilkayat were governed after its issue. This
Court thereafter held:-
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
136
“Having regard to the unambiguous and emphatic words used in
clause 1 of the Firman and having regard to other drastic
provisions contained in its remaining clauses, we are inclined to
think that this Firman made the Tilkayat for the time being a
Custodian, Manager and Trustee, and nothing more. As a
Custodian or Manager, he had the right to manage the properties
of the temple, subject, of course, to the overall supervision of the
Darbar, the right of the Darbar in that behalf being absolute. He
was also a Trustee of the said property and the word “trustee” in
the context must mean trustee in the technical legal sense. In
other words, it is not open to the Tilkayat to claim that he has
rights of a Mahant or a Shebait; his rights are now defined and he
cannot claim any higher rights after the Firman was issued.”
(Emphasis added)
In the backdrop of the finding that the Tilkayat could not claim rights
of a Mahant or a Shebait, the challenge on the grounds that said Act violated
the rights under the Constitution was negated.
On the other hand, after considering the relevant decisions on the point,
in Angurbala Mullick21, this Court had very clearly observed, that even where
no emoluments are attached to the office of the shebait, he enjoys some sort of
right or interest in the debutter property which partially has the character of a
proprietary right. In the decision of a Bench of seven Judges in Shirur Mutt
Case42 the decision in Angurbala Mullick21 was referred to with approval. In
the recent decision of the Constitution Bench in M. Siddiq (Ram Janmabhumi
Temple Case)49, the concerned portion from Angurbala Mullick21 was also
quoted in paragraph 434.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
137
In the premises, in our view, mere factum that no emoluments are
attached to the office of the Shebait would not make any difference to the
character of the right and interest of the Shebait. Though this conclusion is
based on the decisions referred to above, reference may additionally be made
to Para 5.5 of the Book titled “The Hindu Law of Religious Endowments and
Charitable Trusts”, 4th Edition edited by Hon. P.B. Gajendragadkar, former
Chief Justice of India, which points in the same direction.
72. The principles that emerge from the long line of decisions referred to
in the preceding paragraphs can thus be summed up:-
(i) According to Hindu law, when the worship of a thakoor
has been founded, the Shebaitship is held to be vested in the
heirs of the founder, in default of evidence that he has
disposed of it otherwise, or there has been some usage, course
of dealing, or some circumstances to show a different mode
of devolution. (Gossamee Sree Greedharreejee vs.
Rumanlolljee Gossamee24)
(ii) Unless the founder has disposed of the Shebaitship in any
particular manner - and this right of disposition is inherent in
the founder - or except when usage or custom of a different
nature is proved to exist, Shebaitship like any other species
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
138
of heritable property follows the line of inheritance from the
founder. (Angurbala Mullick vs. Debabrata Mullick21)
(iii)The legal character of a Shebait cannot be defined with
precision and exactitude. Broadly described, he is the human
ministrant and custodian of the idol, its earthly spokesman,
its authorised representative entitled to deal with all its
temporal affairs and to manage its property. As regards the
administration of 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, because under Hindu Law,
property absolutely dedicated to an idol, vests in the idol, and
not in the shebait. (Profulla Chorone Requitte v. Satya
Chorone Requitte20)
(iv) Shebaitship in its true legal conception involves two
ideas: The ministrant of the deity and its manager; it is not a
bare office but an office together with certain rights attached
to it. (Monohar Mukherjee vs. Bhupendra Nath Mukherjee
and Ors.30)
(v) The effect of the decisions in Ganesh vs. Lal Behary31
and Bhaba Tarini Debi vs. Asha Lata Debi27
as the Privy
Council pointed out in the latter case, was to emphasise the
proprietary element in the Shebaiti right and to show that
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
139
though in some respects an anomaly, it was an anomaly to be
accepted as having been admitted into Hindu law from an
early date. (The Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt42
)
(vi) It is settled by the pronouncement of the Judicial
Committee in Vidya Varuti v. Balusami26 that the relation of
a Shebait in regard to debutter property is not that of a trustee
to trust property under the English law. (Angurbala Mullick
vs. Debabrata Mullick21)
(vii) In a Hindu religious endowment the entire ownership of
the dedicated property is transferred to the deity or the
institution itself as a juristic person and the Shebait or Mahant
is a mere manager. (Angurbala Mullick vs. Debabrata
Mullick21)
(viii) In the conception of Mahantship, as in Shebaitship, both
the elements of office and property, of duties and personal
interest are blended together and neither can be detached
from the other. The personal or beneficial interest of the
Mahant in the endowments attached to an institution is
manifested in his large powers of disposal and administration
and his right to create derivative tenures in respect to
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
140
endowed properties; and these and other rights of a similar
character invest the office of the Mahant with the character
of proprietary right which, though anomalous to some extent,
is still a genuine legal right. (The Commissioner, Hindu
Religious Endowments, Madras vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt42
)
(ix) Even where no emoluments are attached to the office of
the Shebait, he enjoys some sort of right or interest in the
endowed property which partially at least has the character of
a proprietary right. Thus, in the conception of Shebait 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 is the presence
of this personal or beneficial interest in the endowed property
which invests Shebaitship with the character of proprietary
rights and attaches to it the legal incidents of property.
(Angurbala Mullick vs. Debabrata Mullick21)
(x) Succession to Mahantship of a Math or religious
institutions is regulated by custom or usage of the particular
institution, except where a rule of succession is laid down by
the founder himself who created the endowment. (Sital Das
vs. Sant Ram and others43)
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
141
(xi) The rule of custom should prevail in all cases and if any
aberrations have to be corrected such correction must take us
in the direction of re-establishing the rule of custom. (His
Holiness Digya Darshan Rajendra Ram Doss v. Devendra
Doss45)
(xii) It is not open to the Court to lay down a new rule of
succession or to alter the rule of succession completely. (His
Holiness Digya Darshan Rajendra Ram Doss v. Devendra
Doss45)
(xiii) In the absence of an expressly appointed or identified
Shebait, the law has ensured the protection of the properties
of the idol by the recognition of a de facto Shebait. (M.
Siddiq through LRs vs. Mahant Suresh Das and others
(Ram Janmabhumi Temple Case)49
73. As laid down by this Court, when the idol is installed and the temple is
constructed or an endowment is founded, the shebaitship is vested in the
founder and unless the founder himself has disposed of the shebaitship in a
particular manner or there is some usage or custom or circumstances showing
a different mode of devolution, the shebaitship like any other species of
heritable property follows the line of inheritance from the founder; and it is not
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
142
open to the Court to lay down a new rule of succession or alter the rule of
succession. It has also been laid down that the shebaitship has the elements of
office and property, of duties and personal interest blended together and they
invest the office of the shebait with the character of proprietary right. It has
further been laid down that the shebait is the custodian of the idol, its earthly
spokesman and the human ministrant; is entitled to deal with the temporal
affairs and to manage the property of the idol; and even where no emoluments
are attached to the office of the shebait, he has the right or interest in the
endowed property which has the characteristics of a proprietary right.
If the instant case is considered on the touchstone of these settled
principles, it is clear that after the major fire that occurred in the year 1686, the
Temple was reconstructed and a new idol was installed by the King of
Travancore Shri Marthand Varma and since then right upto the day the
Covenant was signed, the management of the Temple had always been with the
Kings of Travancore. The shebaitship or the managership of the Temple passed
on to the succeeding Kings, coming from the royal family of Travancore. This
chain was unbroken till the then Ruler of Travancore signed the Covenant in
May 1949.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
143
It may be noted here that on 10.08.1947 a proclamation was issued by
the Ruler declaring that in matters of succession to the Rulership and to the
throne and for all other purposes, the royal family was governed by the
Marumakkathayam law, as modified by the custom and usage of the royal
family. In a matter raising issues of succession to certain properties of the Ruler
of Travancore, this Court in Revathinnal Balagopala Varma13 had found that
the devolution in the royal family was from Ruler to Ruler. The shebaitship of
the Temple had also passed from Ruler to Ruler consistent with the principles
of succession otherwise applicable to the royal family.
74. We must thus conclude that as on the day when the Covenant was
entered into by the Ruler of the Covenanting State of Travancore, apart from
other incidents which normally follow the rulership, he was holding the office
of Shebait of the Temple and represented a continuous and unbroken line of
successive Shebaits traced from the original founder; and being a Shebait of the
Temple, he was having all the rights and interest as laid down by decisions
referred to hereinabove.
75. The questions still remain whether the office of Shebaitship of the
Temple was part of the duties of the Ruler purely in his capacity as a Ruler, and
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
144
said office was an incident of his rulership, or such office was totally
unconnected to and independent of the rulership. These questions will be
considered along with other questions which arise for consideration in the next
segment.
B] Effect of the Covenant that was entered into in May 1949
76. The Covenant, relevant parts of which are quoted in paragraph 11
hereinabove, was entered into by the Maharajas of Travancore and Cochin for
the formation of the United State of Travancore and Cochin and 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 the Covenanting
States which appertained or were incidental to the Government of the respective
States, vested in the United State. Similarly, all duties and obligations of “the
Ruler” of either of the Covenanting States pertaining or incidental to the
Government of that State devolved on the United State which would now be
discharged by the United State.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
145
Thus, all functions of the Rulers of either of the Covenanting States
concerning or related to the Government of that State stood vested in or
devolved on the United State.
B) In terms of Article IV “the present Ruler” of Travancore would
be Rajpramukh for the United State and would hold such office “during his
lifetime”. In terms of Article VI, the executive authority of the United State
would be exercised by the Rajpramukh subject to certain stipulations in said
Article; as per Article VII, the Rajpramukh would be guided by the aid and
advice of the Council of Ministers; while in terms of Article X, the Legislature
for the United State would consist of the Rajpramukh and the Legislative
Assembly. Article IX then obliged the Rajpramukh to execute, on behalf of
the United State, an Instrument of Accession in accordance with the provisions
of Section 6 of the Government of India Act, 1935. In terms of Article XXI,
the Rulers of Travancore and Cochin would, however, continue to have and
exercise their “present powers” of suspension, remission or commutation of
death sentences.
Thus, on the appointed day or the Covenant becoming effective, a new
role or capacity, that of Rajpramukh of the United State, was assumed by the
then Ruler of Travancore. No such role was contemplated for the then Ruler
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
146
of Cochin. Their earlier capacities as the Rulers or Heads of the respective
Covenanting States thus stood terminated, save and except what was stated in
Article XXI, where they could still exercise their “present powers” of
suspension, remission or commutation of death sentences. Though, as
Rajpramukh, the then Ruler of Travancore would have executive authority over
the United State which would include areas of the erstwhile Cochin State, his
powers, in terms of Article XXI, were confined to the areas of the erstwhile
Travancore State, while the then Ruler of Cochin, who was not given any
function in the United State, would continue to have and exercise “present
powers” under Article XXI in the areas of the erstwhile Cochin State.
C) Article XIV entitled the Ruler of each Covenanting State to
receive Privy Purses from the revenue of the United State. As regards the
Ruler of the Covenanting State of Travancore, the entitlement was restricted to
“the present Ruler”, and not to his successors. In terms of Article XV, the Ruler
of each Covenanting State would be entitled to the full ownership, use and
enjoyment of all private properties. As per Article XVI, the Ruler of each
Covenanting State, as also the members of his family, would be entitled to all
personal privileges, dignities and titles enjoyed by them, immediately before
15.08.1947. Article XVII assured that succession to the Gaddi of each
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
147
Covenanting State and to the personal rights, privileges, dignities and titles of
the Ruler would be in terms of law and custom.
Apart from Article IV, the expression “the present Ruler” finds mention
in Article XIV. Articles XIV, XV and XVI conferred certain other entitlements
in favour of the Rulers of the Covenanting States and in some cases in favour
of the members of family. The succession to the Gaddi and other incidents
stipulated in Article XVII, would be governed in accordance with law and
custom.
D) Article VIII is of importance and significance for the present
purposes. In terms of Sub-Article ‘a’, the obligation of the Covenanting State
of Travancore to contribute from its general revenue a sum of Rs.50 lakhs every
year to the Dewaswom Board, and a sum of Rs.1 lakh every year to Shri
Pandaravaga would, after the Covenant, be the obligation of the United State.
In terms of Sub-Article ‘b’, the administration of the Temple, Sri Pandaravaga
properties and all other properties and funds of the Temple now vested in trust
in the Ruler of the Covenanting State of Travancore and the sum of Rs.1 lakh
transferred in terms of Sub-Article ‘a’ and Rs.5 lakhs contributed every year
towards the expenditure of the Temple would be conducted subject to the
control and supervision of the Ruler of Travancore by an Executive Officer
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
148
appointed by him. In terms of Sub-Article ‘c’, the administration of the
incorporated and unincorporated Devaswoms and of Hindu Religious
Institutions and Endowments and all their properties and funds which were
under the management of the Ruler of the Covenanting State of Travancore
would stand transferred and vested in the Travancore Dewaswom Board. It
further dealt with manner of apportionment of the contribution of Rs.50 lakhs
as stipulated in Sub-Article ‘a’. In terms of Sub-Article ‘d’, the administration
of the incorporated and unincorporated Dewaswoms and of Hindu Religious
Institutions which were under the management of the Ruler of the Covenanting
State of Cochin would vest in the Cochin Dewaswom Board. However, “the
Ruler of Cochin” would continue to exercise regulation and control of all rituals
and ceremonies in respect of two temples mentioned in the proviso. Sub
Articles ‘e’ and ‘f’ thereafter dealt with compositions of the respective
Dewaswom Boards.
77. Sub-Article ‘b’ of Article VIII used the expression “now vested in trust
in the Ruler of the Covenanting State of Travancore” and thus acknowledged
the factum that the administration in respect of the Temple, Sri Pandaravaga
properties and all other properties and funds of the Temple was already vested
in the Ruler of Covenanting State of Travancore. Sub-Article ‘b’ further
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
149
contemplated that with effect from the appointed day, the administration of the
Temple, Sri Pandaravaga properties and all other properties and funds of the
Temple would be subject to the control and supervision of the “Ruler of
Travancore”. This Sub-Article was the centre of debate and fulcrum of
submissions by the learned counsel appearing for various parties.
On one hand, the submissions on behalf of the appellants and the
Intervenors supporting them, stressed the expression “now vested in trust”
along with the other material on record to emphasize the acknowledged status
of “the Ruler” as Shebait of the Temple as on the day the Covenant was entered
into. They also relied upon the latter part of the Sub-Article to submit that such
status remained unaffected and was certainly intended to be continued.
On the other hand, the submissions on behalf of the State and private
respondents sought to emphasize that the continuation of the status was in
favour of “the Ruler” in his capacity as “the Ruler”.
78. According to the Covenant, insofar as the transfer of sovereign power
and all incidental aspects connected therewith were concerned, the Ruler of the
Covenanting State of Travancore was involved at two stages. Under the first
stage, the transfer was contemplated from him in his capacity as the Head of
the Covenanting State of Travancore in favour of the United State and under
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
150
the second stage as Rajpramukh of the United State he was obliged to execute
an Instrument of Accession in terms of Article IX. On and with effect from the
appointed day in terms of the Covenant, his role as the Head of the State of
Travancore came to an end and he became the Rajpramukh of the United State,
in whom certain powers and rights got vested by virtue of Articles VI, VII and
X. Theoretically, as Rajpramukh, he could as well be vested with powers of
suspension, remission or commutation of death sentences in respect of the
entire area of the United State but the intent was to retain such powers in the
erstwhile Ruler of Cochin State, who had no role in the 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 general mechanism is evident from the expression
“Notwithstanding anything contained in the preceding provisions of this
Covenant”. Therefore, despite generality of the earlier Articles of the
Covenant, only with respect to matters specified in Article XXI, “the Ruler of
Travancore” continued to have the powers which he was enjoying as the Head
of the State of Travancore before the Covenant came into effect. Thus,
wherever the Covenant wanted him to continue to exercise certain powers
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
151
which as Head of the State of Travancore had resided or vested in him, the
Covenant made an express exception and stipulated so.
79. What then would be the import of the expression “the Ruler of
Travancore” in the latter part of Sub-Article ‘b’ of Article VIII is the question
that needs to be addressed.
A) As discussed above, the only place in the Covenant where the
person who signed as the Ruler of the Covenanting State would continue to
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 the Articles, were only by
way of reference to the person concerned, and not by way of reference to or
because of his official capacity as the Ruler. This gets fortified by proviso to
Sub-Article ‘d’ of Article VIII, in terms of which “the Ruler of Cochin” would
continue to exercise regulation and control with respect to rituals and
ceremonies in certain temples. Upon the Covenant coming into effect, he had
lost his capacity as the Head of the erstwhile State of Cochin. Thus, the
retention of the powers under said proviso in him was not because he had any
official status as Head of the State after the appointed day in terms of the
Covenant but only with a view to describe and locate the person concerned. A
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
152
person answering the description in said proviso would continue to exercise
such power. Similar thought can, therefore, be validly 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 of the
royal family with the Temple and the nature of Shebaitship held by a successive
line of Rulers from time to time, were such that the Covenant designedly let the
management of the affairs of the Temple – with the royal family, and in the
hands of the Ruler of Travancore, principally because his official capacity or
status as the erstwhile Head of the State apparently had nothing to do with the
capacity as Shebait of the Temple.
As discussed in the earlier segment, the Shebaitship was always in 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 indicate the deep sense
of attachment and devotion of the ruling family to the Temple and Sri
Padmanabhaswamy, but some reflection in that behalf is also to be noticed in
the White Paper on the Indian States which was initially prepared in July 1948
and updated in March 1950 by Government of India, Ministry of States. It dealt
with the United State of Travancore and Cochin in paragraphs 139 to 145.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
153
Paragraphs 141 and 142 dealt with Devaswoms-Hindu Temples and properties
attached to them in the two States including that of the temple of Sri
Padmanabhaswamy as under:-
“141. One of the special features of the Covenant is the
arrangement in respect of Devaswoms – Hindu temples – and
property attached to them in the two States including the temple
of Shri Padmanabhaswami the tutelary deity of the ruling family
of Travavancore. In Travancore alone, apart from this important
shrine, on the maintenance of which the State was spending over
Rs.1 million per annum, there are 348 major Devaswoms and
1123 minor Devaswoms. Large revenues are derived by the State
from the properties which were attached to these Devaswoms and
provision was made by the State for the maintenance of
Devaswoms, from time to time, at varying figures. Hindu opinion
in the State was unanimous that not only should the continued
payment of the existing allotments for the maintenance of
Devaswoms be guaranteed but that adequate compensation
should also be given in respect of the properties of the
Devaswoms taken over by the State since 1912, and the profits
derived from them. The annual contribution thus claimed ranged
from rupees ten to twenty millions. The Covenant now provides
for a fixed contribution of Rs.5.1 millions for the maintenance of
Devaswoms in Travancore out of which a sum of Rs.600,000 is
to be contributed towards the maintenance of the Shri
Padmanabhaswami temple.
142. The most important departure from the past practice, which
the provisions of the Covenant regarding the Devaswoms involve,
is that, except in the case of Shri Padmanabhaswami temple, in
the management of which the Ruler will be assisted by an
Advisory Committee, the administration of Devaswoms will vest
in two Boards to be set up in these States on which not only the
orthodox Hindus but the Harijans also will be represented. This
introduces a far-reaching temple reform in that under the
arrangement prescribed in the Covenant the Harijans will secure
a share both in the control of the temples and appointments in the
Devaswoms Department, a position hitherto denied to them.”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
154
It may be mentioned here that said White Paper generally gave account
of all such Covenants entered into by various Rulers of the erstwhile Indian
States and except the Temple of Sri Padmanabhaswamy which was specifically
dealt with in the Covenant that we are presently concerned with, no other
temple in any such Indian State was so specifically and separately dealt with.
In that sense, Article VIII of the Covenant has certain unique features.
C) The White Paper also set out, the Covenant entered into by the Rulers
of Gwalior, Indore and certain other States in Central India for 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 time
to time be given by the Government of India in this behalf, the
authority –
(a) to make laws for the peace and good government of any
scheduled area,
(b) to raise, maintain and administer the military forces of
the United State, and
(c) to control the administration of the fund in Gwalior
known as the Gangajali Fund and of any other existing
fund of a similar character in any other Covenanting
State.
shall vest exclusively in the Raj Pramukh”
The control and administration of the Fund known as Gangajali Fund
and of any other existing fund of a similar character in any other Covenanting
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
155
State thus vested exclusively in the Raj Pramukh. The White Paper in
paragraph 159 (iv) described Gangajali Fund as under:-
“(iv) Gangajali Fund. - This Fund, which has a corpus of
Rs.16,237,000/- was created by the Scindias as a special reserve
fund for use during grave emergency such as famine. His
Highness the Maharaja of Gwalior has made this fund available
for public benefit. Subject to any instructions or directions from
the Government of India, the authority to control and administer
the fund is vested in the Rajpramukh of Madhya Bharat.”
In terms of aforestated Article VII (2) the vesting was in favour of the
Raj Pramukh, and not in favour of any concerned Ruler. The Raj Pramukh, in
terms of Article III of said Covenant was to be elected by the Council of Rulers.
Consequently, though Gangajali Fund was constituted by the then Maharaja of
Gwalior, the control was not vested in the Ruler of Gwalior, but in the Raj
Pramukh. This also meant that the vesting was in his official capacity as Raj
Pramukh, who could be any other Ruler, and not strictly the Ruler of Gwalior.
The Madhya Bharat Gangajali Fund Trust Act, 1954 was thereafter
enacted. In terms of Section 6 of said Act, the properties comprising of the
Gangajali Fund vested in the Trustees. In accordance with Section 4 as it
originally stood, the Rajpramukh, the Chief Minister of the State, and a
nominee of the Rajpramukh were designated Trustees. Later there were
amendments to this Section. Section 7 stipulated that the income from the Fund
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
156
be released for schemes relating to (a) relief of famine; (b) medical relief; and
(c) education. The Act was repealed in 2003 and after discharging the
liabilities of the Trust, the residue was directed to be applied to three
educational institutions.
Article VII (2) of said Covenant and the consequential legislation are
clear indication that even where a Trust was constituted for certain charitable
purposes by the then Maharaja of Gwalior, the administration of 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 in the Raj Pramukh in his official
capacity.
In comparison, the vesting of administration of the Temple in the instant
case was not only acknowledged by the Covenant to be in trust with the Ruler
of the Covenanting State of Travancore but such administration was to continue
subject to the control and supervision of “the Ruler of Travancore” even after
the Covenant. This illustration further emphasizes that “the control and
supervision” of the Ruler of Travancore was not in any official capacity.
D) It is also pertinent to note here that other Devaswoms and Endowments
in the erstwhile State of Travancore also used to be under the control of the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
157
erstwhile Ruler of Travancore. Going by the Travancore Interim Constitution
Act which is referred to in detail in paragraph 10 hereinabove, though such
control was to be retained by the ruling family, the Covenant expressed clearly
to the contrary. Sub-Article ‘c’ of Article VIII acknowledged that
administration with respect to said other Devaswoms and Endowments and
other properties was earlier under the management of the Ruler of the
Covenanting State of Travancore. It, however, stated that with effect from the
appointed day in terms of the Covenant, such management would now vest in
Travancore Devaswom Board. This part also finds mention in the relevant
paragraphs of the White Paper as quoted above.
Thus, wherever the official capacity of the Head of the State was
responsible for enabling the Ruler to be in charge of the management or
administration, upon ceasing to have such capacity, the erstwhile Ruler would
have nothing to do with the management of such other Devaswoms or
Endowments. In contrast, the case with respect to the Temple and other
properties referred to in Sub-Article ‘b’ stands on a completely different
footing.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
158
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 of said Sub-Article was not to invest the
said authority and power because he was the Ruler or enjoyed and represented
any official status.
80) A subsidiary issue still needs to be dealt with, and that is whether the
references in said Article were only to the person who was the Ruler at the time
the Covenant was entered into and would not include successors to said Ruler.
The survey of the concerned Articles of the Covenant as set out in
paragraph 11 hereinabove shows that wherever special attributes or rights were
designed to be conferred upon and restricted to “the present Ruler”, the
Covenant was quite specific. Articles IV and XIV are clear instances in that
behalf. On the other hand, whenever the person, who as the Ruler, had signed
the Covenant was to be referred, the expressions used in the Covenant had been
“the Ruler of the Covenanting State” or “the Ruler of Travancore”. These
expressions were only to identify the person who was the Ruler as stated earlier.
Thus, the rights such as the entitlements to Privy Purses and the ownership, use
and enjoyment of private properties and so also to personal rights, privileges,
titles and dignities were concerned, they were assured to “the Ruler of the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
159
Covenanting State”. In addition, certain rights were also granted to the
members of the family and succession to the Gaddi, personal rights and
privileges was expressly assured. Whether those rights or entitlements were
intended to be enjoyed by the successor to the person who signed the Covenant,
would depend upon the nature and content of such right or entitlement. In so
far as the right with respect to Privy Purse payable to the Ruler of Travancore
was concerned, it was expressly limited or confined to “the present Ruler”, and
obviously no successor could claim such entitlement. But rest of the incidents
or entitlements referred to in said Articles were without such restriction.
Additionally, once succession to the Gaddi of each Covenanting State and to
the personal rights and privileges etc. was guaranteed in accordance with law
and custom by Article XVII, these incidents were designed to be available for
enjoyment by the succeeding generations or successors according to law and
custom. If the matter is considered purely from the perspective of Shebaitship
of the Temple, or the right of administration referred to in the latter part of SubArticle ‘b’ of Article VIII, going by the general law of Shebaitship as discussed
in the earlier segment, and the succession according to law and custom, every
successor to the Ruler who signed the Covenant would be entitled to such right.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
160
There is nothing in any of the Articles which even purports to limit or restrict
such devolution.
81. In the circumstances, it must be concluded that Article VIII of the
Covenant not only acknowledged and accepted the factum that the
administration with respect to the Temple, its properties, as well as with respect
to Pandaravaga properties, had already vested in “the Ruler of the Covenanting
State of Travancore”, but the said Article expressly continued the same status
and stipulated that such administration shall be conducted subject to the
supervision and control of “the Ruler of Travancore”, the meaning of which
expression has already been dealt with and deduced earlier.
C] Effect of the Constitution of India as it stood before the
Constitution (Twenty Sixth Amendment) Act, 1971 and of the provisions
of TC Act
82. We now consider the effect of the Constitution of India on the status
and entitlement of the Ruler of Travancore to the Shebaitship of the Temple.
Article 291
53 of the Constitution of India dealt with Privy Purses
payable to the Rulers and stipulated that if under any covenant or agreement
53 The Article was repealed by the Constitution (Twenty Sixth Amendment) Act, 1971
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
161
entered into by the Ruler of any Indian State, any sums were guaranteed or
assured by the Government of the Dominion of India to be paid as Privy Purse,
the sums in that behalf would be charged on and paid out of the Consolidated
Fund of India and that the sums so paid to any Ruler would be exempt from all
taxes on income. Article 36253 of the Constitution of 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 of their respective executive powers, due regard shall be
had to the guarantee or the assurance given under any such covenant or
agreement, as was referred to in Article 291 of the Constitution of India, with
respect to personal rights, privileges and dignities of the Ruler of an Indian
State.
Article 366(22)54
 defined the expression “Ruler” to mean, inter alia,
one who had signed the Covenant referred to in Article 291 and who, for the
time being, was recognized by the President of India to be the Ruler of that
State and would include successor to such Ruler. It may be stated here that
there is no dispute that the Ruler of Travancore who signed the Covenant was
recognized by the President of India to be the Ruler of Travancore. Article 363,
54 As it stood before it was amended by the Constitution (Twenty Sixth Amendment) Act,
1971
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
162
which has remained unamended, speaks of “Bar to interference by Courts in
disputes arising out of certain treaties, agreements etc.”
83. Soon thereafter, the TC Act came into force. The relevant provisions
of the TC Act have already been extracted earlier. Chapter III of the TC Act
specifically dealt with Sree Padmanabhaswamy Temple and matters pertaining
to the administration of the Temple. Said Chapter III of the TC Act is consistent
with the latter part of Sub-Article ‘b’ of Article VIII of the Covenant and
stipulates inter alia that the administration of the Temple, Sri Pandaravaga
properties and all other properties and funds of the Temple “vested in trust in
the Ruler of Travancore” and the sum of Rs.6 lakhs contributed in terms of SubSection 1 of Section 18 of the TC Act shall be conducted, “subject to the control
and supervision of the Ruler of Travancore” by an Executive Officer appointed
by him. Said Chapter III did not confer any right or benefit for the first time,
where none existed earlier but gave statutory recognition to what was
acknowledged and accepted in the latter part of Sub-Article ‘b’ of Article VIII
of the Covenant to be the continuing status. Section 20 of the TC Act then deals
with the constitution of Sree Padmanabhaswamy Temple Committee, which is
also in tune with said Article VIII of the Covenant.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
163
Two features must be noticed at this stage. Insofar as incorporated or
unincorporated Devaswoms are concerned, consistent with the stipulations of
Sub-Article ‘c’ of Article VIII of the Covenant, the control and administration
in respect of such Devaswoms is vested in Travancore Devaswom Board as
stated in Section 15 of the TC Act. There are certain machinery provisions
which deal with the manner in which the affairs of the Devaswom Board would
be conducted, with which we are not presently concerned. Secondly, SubSection 2 of Section 62 of the TC Act, in tune with proviso to Sub-Article ‘d’
of Article VIII of the Covenant provides that despite the vesting of
administration in Cochin Devaswom Board, the regulation and control of rituals
and ceremonies in the temples referred to therein would continue to be
exercised by the Ruler of Cochin. Thus, all material and relevant facets
emanating from various provisions of the Covenant pertaining to the
administration of the Temple, Sri Pandaravaga properties and all other
properties of the Temple, so also, the management and control of all other
Devaswoms and religious endowments were dealt with by the TC Act in a
manner which was completely consistent with the relevant provisions contained
in the Covenant.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
164
84. As stated in paragraph 16 hereinabove, orders passed by the President
of India that Rulers of Indian States had ceased to be recognized as Rulers of
respective Indian States were under challenge in Madhav Rao Scinda12
, in
which case the issues regarding the impact of Articles 291, 362, 363 and
366(22) of the Constitution as well as the effect of legislative measures brought
in pursuance of the provisions of Article 362 were considered by this Court.
With regard to the nature of Privileges enjoyed by the Rulers
Hidayatullah, C.J., in his opinion stated:-
“23. The Privileges of the Rulers included many items. A
memorandum on these privileges was issued by the Ministry of
States in 1949. It did not contain an exhaustive list but was drawn
up to inform Provincial and Union Governments about them. It
contained an itemised list of 34 Privileges. They included several
exemptions from the operation of Indian Laws, the enjoyment of
Jagir and personal property of the Rulers and members of their
families, the payment by the States of the marriage expenses of
the brothers and sisters of the Rulers, immunity from some
processes of courts of law, immunity from requisitioning of the
private properties of the Rulers and their families and so on and
so forth. During the negotiations letters were written to the Rulers
to assure them that the Privy Purse was fixed in perpetuity and the
freedoms enjoyed by them would be continued.”
As regards ‘recognition of a Ruler’ under Article 366(22) the learned
Chief Justice observed:
“53. …. The obligation to recognise a Ruler is bound up with the
other guarantees contained in Articles 291 and 362. The definition
in Article 366(22) is merely the key to find a particular Ruler……
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
165
… … …
72 …This Article renders the certainty of assumption of
Rulership to depend upon recognition and that recognition is
worked out primarily under Covenants and Agreements. The
dominant and immediate purpose and application of the Article
depends upon Covenants and Agreements. I have earlier said that
the President in recognising a Ruler or withdrawing his
recognition does not act arbitrarily but in the light of Covenants
and Agreements. All such instruments mention law and custom
of the family except the Bhopal Agreement where a local statute
has to be observed. The selection of a Ruler’s successor thus has
to be worked out under a Covenant or Agreement. The Article,
therefore, has for its dominant purpose the selection of Rulers
through the application of the Covenants and Agreements.”
The learned Chief Justice then concluded
“77. My conclusions on Articles 291, 362 and 366(22) are that
Article 291 is not a provision relating to Covenants and
Agreements but a special provision for the source of payment of
Privy Purses by charging them on the Consolidated Fund and for
making the payment free of taxes on income. It does not in its
dominant purpose and theme answer the description in the latter
part of Article 363. Article 362 is within the bar of Article 363
because its dominant purpose is to get recognised the Covenants
and Agreements with Rulers. However, in so far as the same
guarantees find place in legislative measures the provisions of
Article 362 need not be invoked and the dispute decided on the
basis of those statutes. Such a case may not attract Article 362 and
consequently the bar of Article 363 may not also apply. Article
366(22) is within the description so long as the President in
recognising a Ruler or a successor is effectuating the provisions
of a Covenant or Agreement. It may apply when the discretion
exercised is relatable to his powers flowing from the Covenants
read with the article. However where the President acts wholly
outside the provisions of Article 366(22) his action can be
questioned because the bar applies to bona fide and legitimate
action and not to ultra vires actions.”
(emphasis added)
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
166
The majority judgment was authored by Shah, J. (as the learned Chief
Justice then was). With regard to Articles 291 and 362, it was observed:-
“126. Even after the integration of States, the obligations under
the covenants were to be met out of the revenues of the respective
States. The covenants and the various stages through which
ultimate integration was achieved probably remained Acts of
State. The rights and obligations accruing or arising under those
acts of State could be enforced only if the Union of India had
accepted those rights and obligations. After the Constitution the
obligation to pay the privy purse rested upon the Union of India,
not because it was inherited from the Dominion of India, but
because of the constitutional mandate under Article 291. The
source of the obligation was in Article 291, and not in the
covenants and the agreements. Reference to the covenants and
agreements in Article 291 was for defining the privy purse: the
obligations of the Provinces in respect of the “Provincially
merged States”, and obligation of the Union of States in respect
of the States merged in such Unions, ceased by recognition to
retain their original character. The obligation which arose out of
the merger agreement and was on that account an act of State shed
its original character on acceptance by the Constitution. The
entity obliged to pay the privy purse did not after the Constitution
remain the same, the source out of which the obligation was to be
satisfied was not the original source; the incident relating to
exemption from payment of tax was vitally altered, and the
amount also was in some cases different. Whereas the liability to
pay the privy purse to the Rulers under the merger agreements
was assured by the Dominion Government, the Constitution
imposed upon the Union Government a directive to pay the privy
purse.
(Emphasis added)
… … …
129. The structure of Article 362 is somewhat different. That
Article imposes restrictions upon the exercise of legislative and
executive functions. Recognition of the personal rights and
privileges of the Rulers arising out of the covenants is not explicit,
but the injunction that in the exercise of legislative and executive
power due regard shall be had to the guarantees, clearly implies
acceptance and recognition of the personal rights, privileges and
dignities. The Constitution thereby affirms the binding force of
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
167
the guarantees and assurances under the covenants of personal
rights, privileges and dignities, but unlike the guarantee of
payment of the privy purse in Article 291, the guarantee under
Article 362 is of the obligation under the original covenants and
agreements executed by the Rulers, barring those regarding which
there is express legislation enacted to give effect to certain
personal rights and privileges e.g., Income Tax Acts, 1922 and
1961, Wealth Tax Act, 1957, Gift Tax Act, 1958, notifications
under the Sea Customs Act, 1878, Code of Civil Procedure, 1908
and Code of Criminal Procedure, 1898. A Ruler seeking to
enforce privileges which parliamentary statutes have recognised
relies for right to relief upon the mandate of the statutes, and not
of the covenant.”
(Emphasis added)
The majority Judgment went on to observe: -
“134. In dealing with the dimensions of exclusion of the exercise
of judicial power under Article 363, it is necessary to bear in mind
certain broad considerations. The proper forum under our
Constitution for determining a legal dispute is the Court which is
by training and experience, assisted by properly qualified
advocates, fitted to perform that task. A provision which purports
to exclude the jurisdiction of the Courts in certain matters and to
deprive the aggrieved party of the normal remedy will be strictly
construed, for it is a principle not to be whittled down that an
aggrieved party will not, unless the jurisdiction of the Courts is
by clear enactment or necessary implication barred, be denied his
right to seek recourse to the Courts for determination of his rights.
The Court will interpret a statute as far as possible, agreeably to
justice and reason and that in case of two or more interpretations,
one which is more reasonable and just will be adopted, for there
is always a presumption against the law maker intending injustice
and unreason. The Court will avoid imputing to the Legislature
an intention to enact a provision which flouts notions of justice
and norms of fair play, unless a contrary intention is manifest
from words plain and unambiguous. The provision in a statute
will not be construed to defeat its manifest purpose and general
values which animate its structure. In an avowedly democratic
polity, statutory provisions ensuring the security of fundamental
human rights including the right to property will be, unless the
contrary mandate precise and unqualified, be construed liberally
so as to uphold the right. These rules apply to the interpretation
of constitutional and statutory provisions alike.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
168
… … …
136. Jurisdiction to try a proceeding is barred under the first limb
of Article 363 if the dispute arises out of the provision of a
covenant: it is barred under the second limb of Article 363 if the
Court holds that the dispute is with respect to a right arising out
of a provision of the Constitution relating to a covenant. A dispute
that an order of an executive body is unauthorised, or a legislative
measure is ultra vires, is not one arising out of any covenant under
the first limb of Article 363, merely because the order or the
measure violates the rights of the citizen which, but for the act or
measure, were not in question. The dispute in such a case relates
to the validity of the act or the vires of the measure. Exclusion of
the Court’s jurisdiction by the terms of the relevant words lies in
a narrow field. If the constitutional provision relating to a
covenant is the source of the right claimed to accrue, or liability
claimed to arise, then clearly under the second limb the
jurisdiction of the Court to entertain a dispute arising with respect
to the right or obligation is barred. We need in the present case
express no opinion on the question whether a dispute that an
executive act or legislative measure operating upon a right
accruing or liability arising out of a provision is invalid falls
within the second limb of Article 363. We do not therefore
pronounce upon the argument of Mr Palkhivalla that the dispute
whether the recognition of a Ruler is withdrawn without authority
of law is not excluded from the jurisdiction of the Courts, because
it is not a dispute with respect to a right accruing under a provision
of the Constitution.
(emphasis added)
… … …
138. Article 366(22) is, in our judgment, a provision relating to
recognition of Rulers: that is the direct and only purpose of the
provision. It is not a provision relating to a covenant. The
qualification of a person being recognized as a Ruler is
undoubtedly that he is a Prince, Chief or other person who had
entered into a covenant or agreement as is referred to in Article
291, or that he is the successor to such a Ruler. Reference to the
covenant or the agreement of the nature mentioned in Article 291
is for determining who may be recognized as a Ruler. Because of
that reference the provision enacted with the object of conferring
authority upon the President to recognize a Ruler, will not be
deemed one relating to the covenant or agreement.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
169
… … …
143. The source of the right to receive the Privy Purse is for
reasons already stated the constitutional mandate: it is not in the
covenant. Reference to the covenant in Article 291 merely
identifies the sum payable as Privy Purse: it does not make Article
291 a provision relating to the covenant. A dispute as to the right
to receive the Privy Purse, is therefore, not a dispute arising out
of the covenant within the first limb of Article 363, nor is it a
dispute with regard to a right accruing or obligation arising out of
a 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 disputes
arising out of any provisions of a treaty, agreement or covenant,
etc. and the second part with dispute in respect of any right
accruing under or any liability or obligation arising out of any of
the provisions of the Constitution, relating to any such treaty,
agreement, covenant, engagement, Sanad or other similar
instrument.
210. Dealing with Articles 362 and 363 this is what the White
Paper says in para 240 (at p. 125):
“Guarantees regarding rights and privileges.—
Guarantees have been given to the Rulers under the
various agreements and covenants for the
continuation of their rights, dignities and privileges.
The rights enjoyed by the Rulers vary from State to
State and are exercisable both within and without the
states. They cover a variety of matters ranging from
the use of the red plates on cars to immunity from
Civil and Criminal jurisdiction and exemptions from
customs duties, etc. Even in the past it was neither
considered desirable nor practicable to draw up an
exhaustive list of all these rights. During the
negotiations following the introduction of the scheme
embodied in the Government of India Act, 1935, the
Crown Department had taken the position that no
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
170
more could be done in respect of the rights and
privileges enjoyed by the Rulers than a general
assurance of the intention of the Government of India
to continue them. Obviously, it would have been a
source of perpetual regret if all these matters had been
made as justiciable. Article 363 has, therefore been
embodied in the Constitution which excludes
specifically the Agreements of Merger and the
covenants from the jurisdiction of Courts except in
cases which may be referred to the Supreme Court by
the President. At the same time, the Government of
India considered it necessary that constitutional
recognition should be given to the guarantees and
assurances which the Government of India have given
in respect of the rights and privileges of Rulers. This
is contained in Article 362, which provides that in the
exercise of their legislative and executive authority,
the legislative and executive organs of the Union and
States will have due regard to the guarantees given to
the Rulers with respect to their personal rights,
privileges and dignities.”
… … …
212. As seen earlier Article 363 has two parts. The first part
relates to disputes arising out of Agreements and Covenants etc.
The jurisdiction of this Court as well as of other Courts is clearly
barred in respect of disputes falling within that part. Then comes
the second part of Article 363, which refers to disputes in respect
of any right accruing under or any liability or obligation arising
out of any of the provisions of the Constitution relating to any
agreement, covenant etc. We are concerned with this part of
Article 363. Before a dispute can be held to come within the scope
of that part, that dispute must be in respect of a right accruing
under or the liability or obligation arising out of a provision of the
Constitution and that provision of the Constitution must relate to
agreements, covenants etc.
213. The principal dispute with which we are concerned in these
cases is whether the President has the power to abolish all Rulers
under Article 366 (22). Quite plainly this dispute cannot be held
to be dispute in respect of a right accruing or a liability or
obligation arising under any provision of the Constitution. Herein
we are not concerned with any right, liability or obligation. We
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
171
are concerned with powers of the President under Article 366(22).
What is in dispute is the true scope of the power of the President
under Article 366(22). That dispute does not fall within Article
363. Power is not the same thing as right. Power is an authority
whereas a right in the context in which it is used in Article 363,
signifies property. The fact that the Court’s decision about the
scope of the power of the President under Article 366(22) may
incidentally bear on certain rights does not make the dispute, a
dispute relating to any right accruing under any provision of the
Constitution. A dispute as regards the interpretation of a provision
of the Constitution is not a dispute within the contemplation of
the second part of Article 363 as it is not a dispute in respect of
any right, liability or obligation. The contention of the petitioners
is that the impugned orders are ultra vires the powers of the
President, hence null and void. Such a dispute does not come
within Article 363.”
85. Hidayatulla, C.J., found Article 291 to be a special provision for the
source of payment of Privy Purses and the same thought was expressed in
paragraph 126 by the majority Judgment which also found the structure of
Article 362 to be different. Unlike Article 291, which itself was the source for
payment of Privy Purses, Article 362 stipulated that due regard shall be had to
the guarantees or assurances given under any covenant or agreement while
exercising legislative or executive power. Thus, the source for enjoyment of
personal rights, privileges and dignities referred to in Article 362 would be in
the statutory provisions enacted in terms of the obligation spelt out in Article
362. To the extent any legislative measure was undertaken, or executive power
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
172
was exercised, with due regard to the guarantees or assurances given under any
covenant or agreement, the source would be in such measure or exercise.
86. Insofar as the present segment is concerned, it must, therefore, be
concluded that the relevant provisions of the Constitution of India as well as
that of the TC Act did not, in any way, upset or abridge the status enjoyed by
the Ruler of Travancore as Shebait of the Temple and also did not, in any
manner, adversely impact the right of administration vested in the Ruler of
Travancore. As a matter of fact, the relevant provisions of the TC Act afforded
statutory flavour to the status contemplated by Article 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, 1971
87. The Statement of Objects and Reasons as well as the nature of this
Constitutional Amendment; the newly incorporated Article 363A and the
amended definition of Ruler in Article 366(22) have been set out in paragraph
17 hereinabove. As the Statement of Objects and Reasons indicated, the
concept of rulership with Privy Purses and special privileges was found to be
incompatible with egalitarian social order and as such it was decided to
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
173
terminate the Privy Purses and privileges of the Rulers so also it was decided
to terminate expressly the recognition already granted to such Rulers and to
abolish Privy Purses and extinguish all rights and obligations in respect of Privy
Purses. This Constitutional Amendment deleted Articles 291 and 362; and
inserted Article 363A which now expressly stipulates inter alia that any person
who was recognized to be the Ruler of an Indian State or his Successor, shall,
cease to be recognized, as such Ruler or Successor, and all rights, liabilities and
obligations in respect of Privy Purses stand extinguished. Article 366(22) was
also accordingly amended and in terms of the amended definition, “Ruler” now
means, inter alia, the person who was recognized as the Ruler of an Indian State
or as a successor to such Ruler, before the commencement of said
Constitutional Amendment. With the deletion of Article 291, the rights,
liabilities and obligations with respect to Privy Purses stood extinguished. The
guiding principles emanating from Article 362 that in exercise of legislative or
executive power, due regard shall be had to the guarantee or assurance given in
any Covenant or agreement referred to in Article 291 also ceased to exist.
88. Before we consider the impact of said Constitutional Amendment, we
must note how the challenge raised by the co-Ruler of Indian State of
Kurundwad Jr. and successor to the late Ruler of Indian State of Mysore to said
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
174
Constitutional Amendment was dealt with by the Constitution Bench of this
Court in Raghunathrao Ganpatrao14
. At the outset, in para 36 of the leading
judgment it was observed:
“36. We are not concerned about the particulars of the agreements
executed by other Rulers of various States.”
Pandian, J. who authored the leading Judgment, referred to antecedent
facts starting from the Constitution (24th Amendment) Bill, 1970 as well as the
challenge raised in Madhav Rao Jivaji Rao Scindia12 as follows:-
“38. On May 14, 1970, the Constitution (Twenty-fourth
Amendment) Bill, 1970 for abolition of the above said privy
purse, privileges etc. conferred under Articles 291, 362 and
366(22) was introduced in the Lok Sabha by the then Finance
Minister, Shri Y.B. Chavan. The Bill contained three clauses and
a short Statement of Objects and Reasons. The statement reads
thus:
“The concept of rulership, with Privy Purses and
Special Privileges unrelated to any current functions
and social purposes, is incompatible with an
egalitarian social order. Government have, therefore,
decided to terminate the Privy Purses and Privileges of
the Rulers of former Indian States. Hence this Bill.”
39. On September 2, 1970 the Bill was voted upon in the Lok
Sabha. But on September 5, 1970 the Rajya Sabha rejected the
same since the Bill failed in the Rajya Sabha to reach the requisite
majority of not less than two-third members present as required
by Article 368 and voting. Close on the heels of the said rejection,
the President of India purporting to exercise his powers under
clause (22) of Article 366 of the Constitution, signed an Order
withdrawing recognition of all the Rulers in the country en masse.
A communication to this effect was sent to all the Rulers in India
who had been previously recognised as Rulers.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
175
40. This Presidential Order de-recognising the Rulers was
questioned in Madhav Rao Scindia v. Union of India12 by filing
writ petitions under Article 32 of the Constitution challenging it
as unconstitutional, ultra vires and void. An eleven-Judge Bench
of this Court by its judgment dated December 15, 1970 struck
down the Presidential Order being illegal, ultra vires and
inoperative on the ground that it had been made in violation of the
powers of the President of India under Article 366(22) of the
Constitution and declared that the writ petitioners would be
entitled to all their pre-existing rights and privileges including
right to privy purses as if the impugned orders therein had not
been passed. Here, it may be noted that Mitter and Ray, JJ. gave
their dissenting judgment.”
While dealing with the decision in Madhav Rao Jivaji Rao Scindia12 it
was observed:-
“60. So far as Article 362 is concerned, it has been held by
majority of the Judges that the said article is plainly a provision
relating to covenants within the meaning of Article 363 and a
claim to enforce the rights, privileges and dignities under the
covenants therefore, are barred by the first limb of Article 363
and a claim to enforce the recognition of rights and privileges
under Article 362 are barred under the second limb of Article 363
and that the jurisdiction of the courts however, is not excluded
where the relief claimed is founded on a statutory provision
enacted to give effect to personal rights under Article 362.”
(Emphasis added)
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
176
The leading Judgment thereafter observed: -
“74. The agreements entered into by the Rulers of the States with
the Government of India were simple documents relating to the
accession and the integration and the “assurances and guarantees”
given under those documents were only for the fixation of the
privy purses and the recognition of the privileges. The guarantees
and the assurances given under the Constitution were independent
of those documents. After the advent of the Constitution, the
Rulers enjoyed their right to privy purses, private properties and
privileges only by the force of the Constitution and in other
respects they were only ordinary citizens of India like any other
citizen; of course, this is an accident of history and with the
concurrence of the Indian people in their Constituent Assembly.
(Emphasis added)
75. Therefore, there cannot be any justification in saying that the
guarantees and assurances given to the Rulers were sacrosanct
and that Articles 291 and 362 reflected only the terms of the
agreements and covenants. In fact as soon as the Constitution
came into force, the Memoranda of Agreements executed and
ratified by the States and Union of States were embodied in
formal agreements under the relevant articles of the Constitution
and no obligation flowed from those Agreements and Covenants
but only from the Constitutional provisions. To say differently,
after the introduction of Articles 291 and 362 in the Constitution,
the Agreements and Covenants have no existence at all. The
reference to Covenants and Agreements was casual and
subsidiary and the source of obligation flowed only from the
Constitution. Therefore, the contention urged on the use of the
words ‘guaranteed’ or ‘assured’ is without any force and
absolutely untenable.
(Emphasis added)
… … …
91. After the commencement of the Constitution, in pursuance of
Article 366(22), the Rulers were recognised and they had been
enjoying the privy purses, privileges, dignities etc. on the basis of
the relevant constitutional provisions. Pursuant to the resolution
passed by the All India Congress Committee in 1967, the Union
of India introduced the Twenty-fourth Amendment Bill in 1970
to implement the decision of the All India Congress Committee
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
177
favouring removal of privy purses, privileges etc. But the Bill
though passed in the Lok Sabha failed to secure the requisite
majority in the Rajya Sabha and thereby it lapsed. It was only
thereafter, the President of India issued an Order in exercise of
the powers vested in him under Article 366(22) de-recognising
the Rulers and stopping the privy purses, privileges etc. enjoyed
by the Rulers. This Order passed by the President was the subjectmatter of challenge in Madhav Rao12
. The Supreme Court struck
down the Order of the President as invalid as in the view of the
Court de-recognition of the Rulers would not take away right to
privy purses when Articles 291 and 362 were in the Constitution.
It was only in that context, the observations which have been
relied upon by Mr Soli J. Sorabjee, were made. The Twenty-sixth
Amendment itself was passed by Parliament to overcome the
effect of this judgment. Now by this Amendment, Articles 291
and 362 are omitted, Article 363-A is inserted and clause (22) of
Article 366 is amended. Therefore, one cannot be allowed to say
that the abovesaid omitted articles and unamended clause were
the essential part of the constitutional scheme. So they have to be
read only in the context of a challenge made to the Presidential
Order which sought to render nugatory certain rights guaranteed
in the Constitution which were then existing. In any event, the
constitutional bar of Article 363 denudes the jurisdiction of any
Court in disputes arising from covenants and treaties executed by
the Rulers. The statement of Objects and Reasons of Twenty-sixth
Amendment clearly points out that the retention of the above
articles and continuation of the privileges and privy purses would
be incompatible with the egalitarian society assured in the
Constitution and, therefore, in order to remove the concept of
rulership and terminate the recognition granted to Rulers and
abolish the privy purses, this Amendment was brought on being
felt necessary.
(Emphasis added)
… … …
96. Permanent retention of the privy purse and the privileges of
rights would be incompatible with the sovereign and republican
form of Government. Such a retention will also be incompatible
with the egalitarian form of our Constitution. That is the opinion
of the Parliament which acted to repeal the aforesaid provisions
in exercise of its constituent power. The repudiation of the right
to privy purse privileges, dignities etc. by the deletion of Articles
291 and 362, insertion of Article 363-A and amendment of clause
(22) of Article 366 by which the recognition of the Rulers and
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
178
payment of privy purse are withdrawn cannot be said to have
offended Article 14 or 19(g) [sic 19(1)(f)] and we do not find any
logic in such a submission. No principle of justice, either
economic, political or social is violated by the Twenty-sixth
Amendment. Political justice relates to the principle of rights of
the people, i.e. right to universal suffrage, right to democratic
form of Government and right to participation in political affairs.
Economic justice is enshrined in Article 39 of the Constitution.
Social justice is enshrined in Article 38. Both are in the directive
principles of the Constitution. None of these rights are abridged
or modified by this Amendment. We feel that this contention need
not detain us anymore and, therefore, we shall pass on to the next
point in debate.”
Mohan, J. in his separate opinion, concurred with the majority decision
and observed:-
“151. The guarantees in Articles 291 and 362 are guarantees for
the payment of privy purses. Such a guarantee can always be
revoked in public interest; more so, for fulfilling a policy
objective or the directive principles of the Constitution. This is
precisely what the preamble to the impugned Amendment says.
That being so, the theory of sanctity of contract or the
unamendability of Article 291 or 362 does not have any
foundation. The theory of political justice is also not tenable since
political justice means the principle of political equality such as
adult suffrage, democratic form of Government, etc.
152. The treaties/covenants/etc. entered into between the Union
of India and the Rulers were as a result of political action. No
justiciable rights were intended to be created. Article 363 as it
stood in its original form spells out this proposition. The rights
and privileges in the articles prior to the Twenty-sixth
Amendment were as acts of State of the Government and not in
recognition of the sacrifices of the Rulers. By no means, can it be
contended that these guarantees given to the Rulers were ever
intended to be continued indefinitely.”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
179
This Court, thus, rejected all the challenges and held the Constitution
(Twenty Sixth Amendment) Act, 1971 to be valid.
89. Consequent to the de-recognition of Rulers of Indian States and
abolition of Privy Purses by the Constitution (Twenty Sixth Amendment) Act,
1971, the Parliament enacted 1972 Act. The relevant provisions of 1972 Act
are set out in paragraph 19 hereinabove. It sought to amend certain enactments
which had granted privileges to former Rulers. One such example pertaining
to the provisions of the Wealth Tax Act is set out in detail in said paragraph 19.
The Statement of Objects and Reasons for 1972 Act discloses that indefinite
continuance of the privileges was found indefensible, but the withdrawal or
cessation would not be immediate “to enable the former Rulers to adjust
progressively.”
Thus, unlike Privy Purses, the termination of which was intended to be
immediate and therefore the source for Privy Purses, namely, Article 291 itself
was deleted, the deletion of Article 362 by itself would not result in cessation
of every privilege or personal right with respect to which “due regard” was had
while exercising legislative power in terms of Article 362 before its deletion.
The source being in the statutory enactments, despite deletion of Article 362, if
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
180
the concerned legislations continue to remain in operation, the personal rights
or privileges could still be enjoyed. That is precisely why, on the strength of
various statutory provisions certain benefits in the form of personal rights or
privileges are still available. It is for the concerned legislatures to take
appropriate steps in accordance with law, either to terminate the effect and
operation of extension of such benefits or allow them to operate or lessen the
extent and cause gradual changes as was sought to be undertaken by 1972 Act.
90. Thus, if the provisions of the TC Act to the extent it enacted Chapter
III of Part I dealing with “Sree Padmanabhaswamy Temple” and related
provisions are taken to be an exercise by the concerned Legislature with “due
regard” to the assurances and guarantees in covenant or agreements in terms of
Article 362 as it existed then even with deletion of Article 362 the concerned
provisions would still be operative so long as appropriate steps are not taken by
the concerned Legislature.
91. As is evident from the White Paper referred to hereinabove, the
assurances and guarantees given in the covenants or agreements entered into
with various Rulers normally had four elements; i) that certain sums shall be
payable to the Rulers by way of Privy Purses; ii) that certain properties
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
181
mentioned as private properties of the Ruler would vest in the Ruler in his
personal capacity; iii) that succession to the Gaddi would go strictly by the
prevalent law and custom; and iv) that personal rights, privileges and dignities
enjoyed by the Rulers and in some cases by 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. The elements (ii) and (iii)
are normal incidents which 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 available for normal
succession and devolution in accordance with the law and custom. Though
concepts such as Ruler or Rulership have ceased to operate, succession to the
Gaddi as an incident may still operate. For instance, there could be a sword or
any other ceremonial weapon, or a sarpech, or heirloom jewellery, which must
go by rule of primogeniture, as against the normal way of succession with
regard to other personal properties. All such incidents have not been
terminated. The clear example is in clause (iv) of sub-section (1) of Section 5
of the Wealth Tax Act, 1957 which uses the expression “jewellery in the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
182
possession of any Ruler, not being his personal property” which had been
recognized as his “heirloom”. Such items or properties which fall in or are
connected strictly with element (iii), may descend along with succession to the
Gaddi and by very nature must remain impartible. On the other hand, if normal
principles of succession are applied, at any given level of succession, such
items or properties recognized as “heirloom” may be required to be shared
amongst more than one person and would therefore cease to be impartible.
93. 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 also dealt with an additional and important
aspect in Article VIII(b). It accepted and acknowledged that the administration
with respect to the Temple, Sri Pandaravaga properties, and the property of the
Temple which was also vested in the Ruler of the Covenanting State would
continue to be conducted in the manner stipulated therein, subject to the control
and supervision of the Ruler of Travancore. The effect of such Article and the
fact that such vesting was not in the capacity as Ruler has already been dealt
with. It has also been concluded that the expression “The Ruler of Travancore”
was only to locate and describe the person who would be in control and
supervision of the administration.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
183
94. In the premises, we must conclude that the Constitution (Twenty Sixth
Amendment) Act, 1971 did not in any way impact or affect the administration
of the Temple, Sri Pandaravaga properties and the properties of the Temple,
which continued to be under the control and supervision of the Ruler of
Travancore.
E] Effect of the death of the person who had signed the Covenant as
the Ruler of the Covenanting State of Travancore
95. As stated in paragraph 21 hereinabove, Sree Chithira Thirunal
Balarama Varma who had signed the Covenant as the Ruler of the Covenanting
State of Travancore, passed away on 19.07.1991.
96. It was submitted on behalf of the State that the said Ruler of the
Covenanting State of Travancore was duly recognized by the President of India
in terms of Article 366(22) of the Constitution as it stood before the
Constitution (Twenty Sixth Amendment) Act, 1971, and that even after the said
Amendment, by virtue of amended definition of Ruler under Article 366(22) he
continued to fulfil the criteria, and could answer the definition of “Ruler”. It
was further submitted that he was thus, the recognized Ruler of Travancore and
in that capacity he could, during his lifetime have the benefit of Chapter III of
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
184
Part I of the TC Act; that after his death, no person or a successor could be
recognized as Ruler of Travancore in terms of Article 366(22), as amended;
and as such, no person can come within the meaning of expression “Ruler of
Travancore” as used in said Chapter III of Part I, and consequently, no person
or successor could avail of the benefit of various provisions in Chapter III of
Part I of the TC Act.
On the other hand, the submission on behalf of the appellants as well as
the Intervenors supporting them is that for the purposes of said Chapter III of
Part I, the definition in Article 366(22) would not be the governing definition.
The matter has to be assessed going by the context in which the expression had
been used in the Covenant and the TC Act.
97. The discussion in the first and second segments hereinbefore have led
us to conclude that as on the day when the Covenant became effective, the Ruler
of the Covenanting State of Travancore, was holding the office of Shebait of
the Temple, which was not in his official capacity as the Ruler; and that the
effect of Sub Article (b) of Article VIII was not to invest any new authority and
power in him for the first time because of his official status, but an
acknowledgement of the existing authority and power already vested in him. It
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
185
has also been concluded by us that the expression “Ruler of Travancore” in the
Covenant and in the TC Act was only to identify the person, and that the official
status of the Ruler of Travancore had no relation with such administration.
The principles emanating from various decisions which were
considered in the first segment have been culled out by us in para 72
hereinabove. If according to the settled principles, the Shebaitship is like any
other heritable property which would devolve in accordance with custom 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, the Shebaitship of the Temple
being unconnected with the official status of the person who signed the
Covenant, must devolve by the applicable laws of succession and custom.
The proclamation issued on 10.08.1947 as referred to in paragraph 8
hereinabove clearly states the applicable principles of succession. The decision
of this Court in Revathiannal13 is also to similar effect. Thus, going by
concerned principles of succession and custom, the successor can easily be
located.
98. It may be relevant to note here that the TC Act has not defined the
expression “Ruler”, and the definition of Ruler under Article 366 (22) of the
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
186
Constitution is for the purposes of the Constitution whereas the expression
“Ruler” as defined under Article 363 of the Constitution in inclusive manner is
for the purposes of said Article alone. In Maharaja Pravir Chandra Bhanj
Deo Kakatiya vs. The State of Madhya Pradesh55 the Constitution Bench of
this Court had stated:-
“… There is nothing in the provisions of Art. 366(22) which
requires a court to recognize such a person as a Ruler for
purposes outside the Constitution. …”
Similarly, in Rani Ratna Prova Devi vs. State of Orissa and
another56
, another Constitution Bench of this Court had observed:-
“…But it must be remembered that the definitions
prescribed by Art. 366 are intended for the purpose of
interpreting the articles in 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 prescribed by Art. 366 (22),
has really no substance or meaning. …”
99. The definitions of ‘Ruler’ in Articles 363 and 366(22) thus do not ipso
facto have any application to the provisions of the TC Act, unless the TC Act
expressly stipulates so or impliedly refers to such definitions either under
Article 363 or under Article 366(22). With the deletion of Articles 291 and
55 (1961) 2 SCR 501
56 (1964) 6 SCR 301
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
187
362, the scope of definition in Article 366(22) to find a particular Ruler for
conferral of advantages referred to in both the Articles, has ceased to have any
significance. However, the concept of the Ruler and Rulership, as discussed
hereinabove are still relevant insofar as certain legislations and provisions are
concerned. Many of these legislations, normally define the expression
themselves, or by reference incorporate the definition as given in Article 363;
for example, Section 87B of the Code of Civil Procedure, 1908. No such
provision was 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
TC Act is capable of being understood to include his successors according to
custom.
100. A perusal at Sections 15, 62 and Chapter III of Part I of the TC Act
clearly shows that these provisions were put on the Statute Book having “due
regard” to the Covenant. Since the source of these provisions lies in the
Covenant, and there being no definition of “Ruler of Travancore”, or for that
matter “Ruler of Cochin”, one has to consider the relevant Articles of the
Covenant to assess or understand the significance of the said provisions of the
TC Act. Sections 15, 62 and Chapter III of Part I of the TC Act were enacted
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
188
principally to give effect to Article VIII and generally to give effect to the
Covenant.
101. In the earlier segments, we have already concluded that Article VIII had
clearly used the expression “now vested in trust in the Ruler” while speaking
about the administration of the Temple, Sri Pandaravaga properties, and the
properties of the Temple. The Covenant thus, not only acknowledged such
status, but in sub-Article ‘b’ of Article VIII, intended to continue the status
where such person would continue to exercise control and supervision over the
administration of the Temple. This was in the backdrop of the long standing
association of the ruling family with the Temple, and the Shebaitship held by
the continuous line of Rulers. The expression “Ruler of Travancore” used in
the provisions of the TC Act must therefore be understood in the same light.
As held earlier, the Covenant never intended to restrict, or do away, with the
right of administration already vested in the “Ruler of Travancore”, and such
expression was not intended to be confined to the present incumbent, or the
person who had signed as the Ruler of the Covenanting State of Travancore.
Going by the normal incidents of Shebaitship including the heritability, the
context in which the expression was used in Article VIII of the Covenant, and
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
189
carried in the provisions of the TC Act, it must be held that such expression
must include the successors to the person who had signed the Covenant.
102. Apart from the Covenant, the expression “Ruler of Travancore” as used
in Chapter III of Part I of the TC Act did not depend upon any other enactment
or instrument to look for the successor to the Ruler of Travancore, nor is there
any express or implied intendment to go by the definition of “Ruler” either
under Article 363 or 366(22) of the Constitution. The Covenant speaks of
succession, according to law and custom, and that is how the successor must be
identified. As Hidayatullah, C.J., opined in paragraphs 53 and 7257 of his
Judgment in Madhav Rao Jivaji Rao Scindia12 the definition in Article 366(22)
as it then stood was merely a key to find a particular Ruler, and that the selection
of a successor to the Ruler was required to be worked out under the Covenant.
The method of selecting the successor under Article 366(22) as it then stood
was not by way of any different formula or principle but was rooted in the
concerned law and custom. That being the underlying principle as available
from the Covenant, there would not be any difficulty in identifying the
successor as and when the occasion arises.
57 Quoted in paragraph 84 hereinabove
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
190
103. At the same time, if the submission that the expression “Ruler of
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 an expression
dependent upon any recognition. Secondly, there is no power in the President
of India, after the Constitution (Twenty Sixth Amendment) Act, 1971 to grant
any such recognition. Thirdly, the consequence of such an interpretation would
mean that the unbroken line of succession to the Shebaitship would stand
terminated making the entire Chapter III of Part I of the TC Act meaningless
and redundant. Consequently, the administration of the Temple, Sri
Pandaravaga properties and the properties of the Temple would suffer immense
prejudice. Section 15 of the Act which vested the rights, authority and
jurisdiction in respect of Devaswoms and Hindu Religious Endowments in the
Travancore Board is also inapplicable to Chapter III of Part I. This would result
in a complete void. The Legislature could not be ascribed of such an intention.
On the other hand, the Legislature must be taken to be well aware that the
Shebaitship was heritable, and remained in the royal family for few centuries
in an unbroken line of succession. It is for this reason, consistent with the terms
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
191
of the Covenant, a special dispensation was made in Chapter III of Part I of the
TC Act.
104. It may be relevant to note that the State in two affidavits filed in the
Suits as referred to hereinabove, has taken a clear stand that the Temple is
managed by the Travancore Palace. These affidavits were filed by responsible
officers of the State, well after the death of the then Ruler in 1991. The
understanding on part of the State machinery, or the officials by itself can never
be the determining criteria, but that is a relevant factor to be taken note of, as
observed by this Court in National and Grindlays Bank Ltd. vs. Municipal
Corporation of Greater, Bombay58 and in Desh Bandhu Gupta and Co. and
others vs. Delhi Stock Exchange Association Ltd.59

105. In the instant case, since the Shebaitship had vested in the Ruler of
Travancore, not in his official capacity, the normal incident of heritability must
get attached to the office of such Shebaitship in accordance with governing
principles of succession and custom. Therefore, when it comes to the matter
concerning the administration of the Temple, Sri Pandavaraga properties and
the properties of the Temple, the expression “the Ruler of Travancore” as
58 (1969) 1 SCC 541 para 5
59 (1979) 4 SCC 565 para 9
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
192
appearing in Chapter III of Part I of TC Act must mean the successor in
accordance with the prevalent law and custom. In the process one need not go
to the definition of Ruler either under Article 366(22) or under Article 363 of
the Constitution of India. Consistent with the principles that have been culled
out in para 72 hereinabove, after the death of the person who was in control and
supervision of the administration, the heritable interest must devolve in
accordance with the customary rights.
106. Further, unless and until the line of succession of the Shebaitship and
in-charge of the administration, is completely extinct, there can be no question
of escheat as observed by the High Court. In Kutchi Lal Rameshwar Ashram
Trust Evam Anna Kshetra Trust v. Collector, Haridwar60
, this Court had an
occasion to consider the issue of escheat in the context of a Public Trust. In
that case, after the death of one Mohanlal in whose name patta of the property
was secured, the Collector had concluded that the property vested in the State
Government by operation of law. Setting aside the decision of the High Court
which had affirmed the conclusions of the Collector, this Court observed:-
“20. Section 29 of the Hindu Succession Act, 1956 has been
invoked by the Collector. Section 29 provides as follows:
60 (2017) 16 SCC 418
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
193
“29. Failure of heirs.—If an intestate has left no heir
qualified to succeed to his or her property in accordance
with the provisions of this Act, such property shall devolve
on the Government; and the Government shall take the
property subject to all the obligations and liabilities to
which an heir would have been subject.”
Section 29 embodies the principle of escheat. The doctrine of
escheat postulates that where an individual dies intestate and does
not leave behind an heir who is qualified to succeed to the
property, the property devolves on the Government. Though the
property devolves on the Government in such an eventuality, yet
the Government 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 but as the lord paramount of the whole soil of the
country”, as held in State of Punjab v. Balwant Singh61. This
principle from Halsbury’s Laws of England62 was adopted by this
Court while explaining the ambit of Section 29. Section 29 comes
into operation only on there being a failure of heirs. Failure means
a total absence of any heir to the person dying intestate. When a
question of escheat arises, the onus rests heavily on the person
who asserts the absence of an heir qualified to succeed to the
estate of the individual who has died intestate to establish the
case. The law does not readily accept such a consequence. In State
of Bihar v. Radha Krishna Singh63, a Bench of three Judges of
this Court formulated the principle in the following observations:
“272. It is well settled that when a claim of escheat is put
forward by the Government the onus lies heavily on the
appellant to prove the absence of any heir of the respondent
anywhere in the world. Normally, the court frowns on the
estate being taken by escheat unless the essential conditions
for escheat are fully and completely satisfied. Further,
before the plea of escheat can be entertained, there must be
a public notice given by the Government so that if there is
any claimant anywhere in the country or for that matter in
the world, he may come forward to contest the claim of the
State. In the instant case, the States of Bihar and Uttar
Pradesh merely satisfied themselves by appearing to oppose
61 1992 Supp (3) SCC 108
62 4
th Edn., Vol.17, Para 1439
63 (1983) 3 SCC 118
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
194
the claims of the respondent-plaintiffs. Even if they succeed
in showing that the plaintiffs were not the nearest
reversioners of the late Maharaja, it does not follow as a
logical corollary that the failure of the plaintiffs’ claim
would lead to the irresistible inference that there is no other
heir who could at any time come forward to claim the
properties.”
… … …
22. In Rambir Das v. Kalyan Das64 a Bench of two learned Judges
of this Court dealt with a case of shebaitship. Citing the authority
of Justice B.K. Mukherjea’s celebrated Tagore Law Lectures with
approval, this Court took note of the position of law elucidated in
the lectures: (Rambir Das case64
, SCC p. 105, para 3)
“3. … ‘As shebaitship is property, it devolves like
any other property according to the ordinary Hindu
law of inheritance. If it remains in the founder, it
follows the line of founder’s heirs; if it is disposed of
absolutely in favour of a grantee, it devolves upon the
heirs of the latter in the ordinary way and if for any
reason the line appointed by the donor fails
altogether, 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
the founder or his heirs, in case the line of shebaits is
extinct, strictly speaking no question of escheat arises
so far as the devolution of shebaitship is concerned.
But cases may be imagined where the founder also
has left no heirs, and in such cases the founder’s
properties may escheat to the State together with the
endowed property. In circumstances like these, the
rights of the State would possibly be the same as those
of the founder himself, and it would be for it to
appoint a shebait for the debutter property. It cannot
be said that the State receiving a dedicated property
64 (1997) 4 SCC 102
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
195
by escheat can put an end to the trust and treat it as
secular property.’”
In other words, even in a situation where a founder or his line of
heirs is extinct, and the properties escheat to the State, the State
which receives a dedicated property is subject to the trust and
cannot treat it in the manner of a secular property. In fact, we may
note, Section 29 expressly stipulates that the State “shall take the
property subject to all the obligations and liabilities to which an
heir would have been subject”.
23. In deciding this case, this Court must also bear in mind the
settled principle that unless the founder of a math or religious
institution has laid down the principle governing succession to the
endowment, succession is regulated by the custom or usage of the
institution. This principle was enunciated over six decades ago by
this Court in Sital Das v. Sant Ram43
, rendered by B.K.
Mukherjea, J., speaking for a Bench of four Judges: (AIR p. 609,
para 9)
“9. In the appeal before us the contentions raised
by the parties primarily centre round the point as to
whether after the death of Kishore Das, the plaintiff or
Defendant 3 acquired the rights of Mahant in regard to
the Thakardwara in dispute. The law is well settled that
succession to Mahantship of a Math or religious
institution is regulated by custom or usage of the
particular institution, except where a rule of succession
is laid down by the founder himself who created the
endowment. As the Judicial Committee laid down [Vide
Genda Puri v. Chatar Puri44
, IA at p. 105] in one of the
many cases on this point: (SCC OnLine PC)
‘… In determining who is entitled to succeed
as Mohunt, the only law to be observed is to
be found in the custom and practice, which
must be proved by testimony, and the
claimant must show that he is entitled
according to the custom to recover the office
and the land and property belonging to it.’
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
196
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 to
escheat and that the onus rests heavily on the person who asserts
that an individual has died intestate, leaving no legal heir,
qualified to succeed to the property, is founded on a sound
rationale. Escheat is a doctrine which recognises the State as a
paramount sovereign in whom property would vest only upon a
clear and established case of a failure of heirs. This principle is
based on the norm that in a society governed by the Rule of Law,
the court will not presume that private titles are overridden in
favour of the State, in the absence of a clear case being made out
on the basis of a governing statutory provision. To allow
administrative authorities of the State—including the Collector,
as in the present case—to adjudicate upon matters of title
involving civil disputes would be destructive of the Rule of Law.
The Collector is an officer of the State. He can exercise only such
powers as the law specifically confers upon him to enter upon
private disputes. In contrast, a civil court has 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 holding that the Collector
acted without jurisdiction in the present case, it is not necessary
for the Court to go as far as to validate the title which is claimed
by the petitioner to the property. The Court is not called upon to
decide whether the possession claimed by the Trust of over fortyfive years is backed by a credible title. The essential point is that
such an adjudicatory function could not have been arrogated to
himself by the Collector. Adjudication on titles must follow
recourse to the ordinary civil jurisdiction of a court of competent
jurisdiction under Section 9 of the Code of Civil Procedure,
1908.”
107. In the circumstances, we hold that the death of Sree Chithira Thirunal
Balarama Varma who had signed the Covenant, would not in any way affect
the Shebaitship of the Temple held by the royal family of Travancore; that after
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
197
such death, the Shebaitship must devolve in accordance with the applicable law
and custom upon his successor; that the expression “Ruler of Travancore” as
appearing in Chapter III of Part I of the TC Act must include his natural
successors according to law and custom; and that the Shebaitship did not lapse
in favour of the State by principle of escheat.
108. We must now deal with two decisions on which reliance was placed by
Mr. Suresh, learned counsel for respondent Nos.3, 4 and 6 in appeal arising
from Special Leave Petition (Civil) No.12361 of 2011.
A) In Bala Shankar Maha Shanker Bhattjee and Others vs. Charity
Commissioner, Gujarat State23 the basic issue was whether Kalika Mataji
Temple was a public Trust. The High Court found, inter alia, that by Sanad
No.19, Scindias in their capacity as sovereign Rulers had passed on their
obligations in respect of the temple to the British Government by a treaty
concluded between them in 1860. After considering various decisions on the
point, the principles were noted by this Court as under: -
“19. A place in order to be a temple, must be a place for public
religious worship used as such place and must be either dedicated
to the community at large or any section thereof as a place of
public religious worship. The distinction between a private
temple and public temple is now well settled. In the case of former
the beneficiaries are specific individuals; in the latter they are
indeterminate or fluctuating general public or a class thereof.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
198
Burden of proof would mean that a party has to prove an
allegation before he is entitled to a judgment in his favour. The
one or the other of the contending parties has to introduce
evidence on a contested issue. The question of onus is material
only where the party on which it is placed would eventually lose
if he failed to discharge the 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. The
property endowed to it vests in it but the idol has no beneficial
interest in the endowment. The beneficiaries are the worshippers.
Dedication may be made orally or can be inferred from the
conduct or from a given set of facts and circumstances. There
need not be a document to evidence dedication to the public. The
consciousness of the manager of the temple or the devotees as to
the public character of the temple; gift of properties by the public
or grant by the ruler or Government; and long use by the public
as of right to worship in the temple are relevant facts drawing a
presumption strongly in favour of the view that the temple is a
public temple. The true character of the temple may be decided
by taking into consideration diverse circumstances. Though the
management of a temple by the members of the family for a long
time, is a factor in favour of the view that the temple is a private
temple, it is not conclusive. It requires to be considered in the light
of other facts or circumstances. Internal management of the
temple is a mode of orderly discipline or the devotees are allowed
to enter into the temple to worship at particular time or after some
duration 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 of inference.
21. Dedication to the public may be proved by evidence or
circumstances obtainable in given facts and circumstances. In
given set of facts, it is not possible to prove actual dedication
which may be inferred on the proved facts that place of public
religious worship has been used as of right by the general public
or a section thereof as such place without let or hindrance. In a
public debuttar or endowment, the dedication is for the use or
benefit of the public. But in a private endowment when property
is set apart for the worship of the family idol, the public are not
interested. The mere fact that the management has been in the
hands of the members of the family itself is not a circumstance to
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
199
conclude that the temple is a private trust. In a given case
management by the members of the family may give rise to an
inference that the temple is impressed with the character of a
private temple and assumes importance in the absence of an
express dedication through a document. As stated earlier,
consciousness of the manager or the devotees in the user by the
public must be as of right. If the general public have always made
use of the temple for the public worship and devotion in the same
way as they do in other temples, it is a strong circumstance in
favour of the conclusiveness of public temple. The origin of the
temple, when lost in antiquity, it is difficult to prove dedication
to public worship. It must be inferred only from the proved facts
and circumstances of a given case. No set of general principles
could be laid.”
This decision lays down the parameters for testing whether a particular
temple is a private temple, or a public temple, and reiterates that though the
property endowed to it vests in the idol, it has no beneficial interest in it and
that the beneficiaries are worshippers. It also acknowledges that in a given case
the management of the temple may be by the members of a family.
The conclusions drawn by us in the present case, are not in any way
inconsistent with this decision and the accepted premise in the present case is
that the Temple is a public temple.
B) In Deep Chand vs. The State of Uttar Pradesh and Others22 , the
questions that arose for consideration were concerning the validity of a scheme
framed by the State pursuant to the provisions of the Motor Vehicle Act, 1939.
Thereafter, Parliament enacted the Motor Vehicle (Amendment) Act, 1956,
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
200
which inserted Chapter IVA into the principal Act. The matter was tested on
the principles of repugnancy as also on the anvil of Article 13 of the
Constitution. The decision in Deep Chand (supra) thus has no application to
the present controversy.
109. Having considered the nature of Shebatiship of the Temple and the
effect of developments such as the Constitution (Twenty Sixth Amendment)
Act, 1971 and the death of the Ruler who has signed the Covenant, we now turn
to the other issues projected by the learned counsel for various parties.
I] Bar under Article 363 of the Constitution of India
i) In para 77 of his opinion in Madhav Rao Jivaji Rao Scindia12
,
Hidayatullah, C.J., had observed that insofar as the guarantees that had found
place in legislative measures, the provisions of Article 362 need not be invoked
and the dispute could be decided on the basis of the Statutes which were enacted
having due regard to the contents of the Covenant, and that such a case would
not attract Article 362. To similar effect are the observations made by the
Majority Judgment in that decision in the portions quoted hereinabove. The
matter was put beyond any doubt in para 60 of the leading judgment in
Raghunathrao Ganpatrao14 where the ratio in Madhav Rao Jivaji Rao
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
201
Scindia12 was dealt with, and it was held that the jurisdiction of the Courts
would not get excluded where relief was found in a statutory provision enacted
in terms of Article 362 of the Constitution. The tenor of the Suits as filed was
to agitate that the expression “Ruler of Travancore” appearing in Chapter III of
Part I of the TC Act ought to be construed in the manner suggested by the
plaintiffs. The relief was thus founded on the interpretation suggested by the
plaintiffs and therefore would not come within the bar engrafted in Article 363
of the Constitution. The decisions of this Court in Madhav Rao Jivaji Rao
Scindia12 as well as in Raghunathrao Ganpatrao14 have clearly ruled out the
applicability of any such bar.
ii) As observed in the judgments of Hidayatullah, C.J., and the majority
judgment as well as in the opinion of Hegde, J., in order to get the bar under
Article 363 attracted, the dispute must fall under either of two limbs of Article
363. Under the first limb the dispute must arise out of the provisions of the
Covenant, whereas under the second limb the dispute must be with respect to
the right arising out of a provision of the Constitution relating to the Covenant.
 The dispute raised in the Suits in the present case, which were sought
to be transferred to the High Court, had questioned the authority of the appellant
No.1 only from the stand point of the expression “Ruler of Travancore”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
202
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 the Constitution.
iii) The reliance placed on the decision of this Court in Colonel His
Highness Sawai Tej Singhji of Alwar vs. Union of India and anr.16 was thus
completely misplaced. In that case, the Suit was filed by the Ruler of Alwar
praying that three properties namely the Secretariat Building, Daulat Khana
building and Indra Viman Station be declared as private properties of said Ruler
and that State of Rajasthan be ejected from those properties or in the alternative
be directed to pay rent to said Ruler. The issue was whether those three
properties were accepted to be private properties of the Ruler. Since the Suit
directly related to the scope of the description of the property in the concerned
documents pertaining to accession, in view of the bar under Article 363 of the
Constitution, the Suits were found to be not maintainable. A submission was
advanced before this Court that in the “parent” Covenant the property was
described to be the private property of the Ruler, and subsequent
communications including the one dated 14.09.1949, would not operate as a
bar under Article 363 of the Constitution. In this backdrop the matter was dealt
with by this Court as under:-
“20. Another contention raised by Mr Sharma was that even if the
letter dated September 14, 1949 was held to evidence an
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
203
agreement, it was not hit by the provisions of Article 363 of the
Constitution inasmuch as it was an agreement resulting from the
Rajasthan Covenant which alone, according to him, was the
agreement covered by the article. This contention is also without
substance. Article 363 of the Constitution bars the jurisdiction of
all courts in any disputes arising out of any agreement which was
entered into or executed before the commencement of the
Constitution by any ruler of an Indian State to which the
Government of India was a party. The operation of the article is
not limited to any “Parent” covenant and every agreement
whether it is primary or one entered into in pursuance of the
provisions of a preceding agreement would fall within the ambit
of the article. Thus the fact that the agreement contained in the
letter dated September 14, 1949 had resulted from action taken
under the provisions of the Rajasthan Covenant, is no answer to
the plea raised on behalf of the respondents that Article 363 of the
Constitution is a bar to the maintainability of the two suits,
although we may add, that the agreement did not flow directly
from the Rajasthan Covenant but was entered into by ignoring
and departing from the provisions of clause (2) of Article XII
thereof.”
iv) In the circumstances, we accept the submissions made on behalf of the
State, as well as the concerned respondents, and hold that the bar under Article
363 of the Constitution of India would not get attracted in the present matter,
and that the submissions in that behalf advanced on behalf of the appellants as
well as the intervenors supporting them deserve to be rejected.
II] Submissions on the basis of Articles 25(1) and 26(b) of the
Constitution
i) The submissions advanced by Mr. Deepak, learned Advocate for the
Intervenors in this connection have been noted out in para 42 hereinabove.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
204
However, no such submissions were either advanced before the High Court, or
in this Court, on behalf of the appellants. No factual foundation was also laid
either before the High Court or in the form of pleadings by the appellants before
this Court.
ii) In the absence of pleadings and requisite issues having been raised by
the competing claimants, it would be extremely difficult to enter into said issues
so raised by Mr. Deepak, learned Advocate and consider whether the role
played by the Royal Family as descendants of Maharaja Aditya and as
“Padmanabhadasa” is essential and integral to the very foundation and identity of the
Temple. Similarly, the question whether “Parashurama Padhati” being practiced
has a distinct identity of its own action would also require complete elaboration
and assessment of facts.
iii) We therefore accept the submissions of Mr. Gupta, learned Senior
Advocate for the State that in the absence of any claim being raised in a
properly instituted proceedings by an identifiable religious denomination, there
would be no question of adjudicating or giving a finding regarding violation of
any rights under Articles 25 and 26 of the Constitution, and that there would be
no occasion to enter into the question whether or not the Temple is of a
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
205
denominational character as projected, or that the relationship between the
“Ruler of Travancore” and the Temple could be said to be an essential or
integral part of the Hindu religion in general.
iv) In the circumstances we refuse to enter into the questions raised by
Mr. Deepak, learned Advocate for the Intervenors in these proceedings.
110. The legal issues having been dealt with, we must now consider what
should be the “way forward”. After the decision of the High Court, various
orders were passed by this Court, committees were formed and inspections
were undertaken. Inventorization has taken place with respect to most of the
Kallaras, the antiques and artifacts of the Temple have been digitized, and for
the last more than 9 years various steps have been taken under the directions of
this Court by all the authorities. The State has also expended considerable
amounts as stated in the tabular chart referred to in para 44 hereinabove.
i) Consistent with the stand that the Temple is a public Temple and that
no remuneration at any stage was derived in the past or would be aimed at in
future, a suggestion was made on behalf of the appellants in the form of a Note
in response to the affidavit in reply filed on behalf of the State. In the said
Note, which is set out in detail in Paragraph 47 hereinabove, the appellants have
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
206
suggested the composition of an Administrative Committee, and of an
Advisory Committee. Broadly, it is suggested that the Administrative
Committee be formed comprising of five Members, the Chairperson being a
retired Indian Administrative Service Officer of the rank of Secretary to
Government of Kerala; the other four members being (i) a nominee of the
Trustee; (ii) the Chief Thantri of the Temple; (iii) a nominee of the Government
of Kerala; and (iv) a Member to be nominated by the Ministry of Culture,
Government of India. In terms of para 8 of the Note, the Trustee that is to say
the Manager or Shebait of the Temple would be guided by the advice given by
the Advisory Committee.
ii) On the other hand, the suggestion made on behalf of the State is to
follow the model statutorily enacted for Guruvayoor Devaswom, and thus the
Managing Committee would be of eight Members comprising of two ex-officio
members, namely, Padmanabhadasa and the Senior Thantri; while the other six
Members would be nominated by the Hindus among the Council of Ministers;
one of them being Member of the Scheduled Castes and Scheduled Tribes while
one being a woman, and the other being a representative of the employees of
the Temple.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
207
111. It may be noted here that the following Committees were constituted
from time to time by this Court.
A) By Order dated 02.05.2011, two observers were appointed for
the purposes of inventorization.
B) By Order dated 21.07.2011, an Expert Committee was appointed
for the purposes of Inventory, Conservation and Security.
By same order, Overseeing Committee was also appointed to
supervise and guide the working of the Expert Committee.
C) The Order dated 13.02.2013 refers to the Temple Committee in
terms of Section 20 of the TC Act to advise the Ruler of
Travancore.
D) By Order dated 11.12.2013, Conservation and Restoration
Committee was appointed for Structural Renovation and
Restoration.
E) Since the Executive Officer proceeded on leave, an Interim
Administrative Committee was appointed vide Order dated
24.04.2014 for day to day functions relating to the Temple.
F) By Orders dated 09.05.2017 and 04.07.2017, apart from
reconstituting the Conservation Committee, a Selection
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
208
Committee for Sreekovil was also appointed to select the suitable
person having requisite knowledge.
These Committees were constituted at the interim stage of the
proceedings in this Court.
112. We may, at this stage, also refer to some of the Reports submitted by
the Administrative Committee appointed by this Court:-
i) In the Report dated 05.01.2018, it was reported that taking advantage
of the fact that an ad hoc committee was at the helm of the affairs of the
Temple, some of the occupants of the structures on East Nada, North
Gate and Utsava Madom Building continued to be or were in illegal
and unauthorized occupation and that requisite action to resume the
possession of said structures from such occupants ought to be
undertaken.
ii) In the Report dated 01.01.2020, it was stated that from 04.01l.2019 to
20.12.2019, the offerings made by the devotees visiting the Temple, in
the ‘Kanikka’ amounted to Rs.5,68,96,260/- (Rupees Five Crores Sixty
Eight Lakhs Ninety Six Thousand Two Hundred and Sixty Only).
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
209
iii) The Report dated 27.05.2020, under the signature of the District Judge,
referred to the earlier Resolution dated 13.06.2017 and the direction
issued by this Court in its Order dated 04.07.2017 requesting the State
to nominate a panel of three officers from the Indian Audit and
Accounts Service (IA &AS) to oversee the audit and accounts of the
Temple and submit quarterly reports to the Administrative Committee.
The Report stated:-
“I may also report that the Administrative Committee is perfectly
in the darkness regarding the financial position and accounts of
the Temple. Different District Judges discharged duties as
Chairmen of the Administrative Committee during different
periods since the inception of the Committee as per the directions
of the Hon’ble Supreme Court. So far, the respective Executive
Officers, in charge of the financial matters of the Temple, have
not produced either the budget proposals or the statement of
accounts before the Administrative Committee.
… … …
The Executive Officer informed me that as the Principal
Accountant General raised queries on the remuneration of the
serving IAAS Officers and the State Government was not in a
position to meet the expenses, the direction of the Hon’ble
Supreme Court 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
oversee the audit conducted by the Internal Auditor and
Statutory Auditor.
(ii) The service of a serving IA & AS Officer is required
on foreign service terms.
(iii) In addition, the services of two non IA & AS Officers,
who are in service, is also required on foreign service
terms to assist the IA & AS Officer.’
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
210
The Committee also authorized the Executive Officer to take up
the matter with the Government and to bring the developments to
the notice of the Hon’ble Supreme Court.
So far, the directions of the Hon’ble Supreme Court to appoint an
IA & AS Officer to oversee the internal audit and statutory audit
has not been complied with. Still the Committee is in darkness
on the financial position and accounts of the Temple.”
113. The provisions of the TC Act with respect to the administration of the
Temple are clear:-
a) Under Section 18(2), the administration shall be conducted. “Subject
to the control and supervision of the Ruler of Travancore, by an Executive
Officer appointed by him.”
b) “Sree Padmanabhaswamy Temple Committee” composed of three
members nominated by the Ruler of Travancore in terms of Section 20 is to
advise the Ruler of Travancore in the discharge of his functions.
The Statute has thus vested the power of appointing the Executive
Officer and of forming the Advisory Committee, in the Ruler of Travancore.
In the Note, the appellants have stated:-
(i) “The Trustee shall delegate his powers of administration under
Section 18(2)” to the Administrative Committee which “shall
administer the Temple through an Executive Officer to be
appointed by the Committee”.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
211
(ii) On all policy matters, the Trustee shall be guided by the advice
of the Advisory Committee.
114. Having given our anxious consideration to the rival suggestions, the
composition of the Committees as suggested by the appellants deserves
acceptance, especially in light of the conclusions arrived by us that the
Managership or the Shebaitship of the Temple continues with the Family. As
against the administration contemplated by Chapter III of Part I of the TC 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 suggested is broad based and would not be loaded
in favour or against the Trustee. However, considering the fact that the present
interim Administrative Committee headed by the District Judge is in seisin for
the last more than five years, and various District Judges as Chairpersons of the
Committee conducted themselves quite well, in our view, a minor change in
the Administrative Committee suggested by the appellants in their Note is
called for. Instead of a retired Indian Administrative Service Officer of the rank
of Secretary to the Government of Kerala as the Chairperson of the
Administrative Committee, in the interest of justice, the District Judge,
Thiruvananthapuram shall be the Chairperson of the Administrative
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
212
Committee. Needless to say that the present Chairperson of the Interim
Administrative Committee shall continue to be the Chairperson so long as he
holds the post of the District Judge, Thiruvananthapuram. The composition of
the Advisory Committee will ensure that the administration of the Temple is
conducted in a fair and transparent manner.
115. We, therefore, accept the suggestions made by the appellants in their
Note adverted to in detail in paragraph 47 hereinabove with regard to the
constitution of the Administrative Committee and the Advisory Committee
subject to the modification with respect to the Chairperson of the
Administrative Committee as stated in the preceding paragraph. The appellant
No.1 shall file an appropriate affidavit of undertaking within four weeks of this
judgment in terms of paragraph 1 of the Note and also agreeing to the
modification as stated above. The affidavit of undertaking so filed shall be
binding on the appellant No.1 and all his successors.
Within four weeks of filing of the affidavit of undertaking, both the
Committees shall be constituted and become functional. The Administrative
Committee shall immediately appoint the Executive Officer. Upon the
constitution of the Administrative Committee, the Interim Administrative
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
213
Committee appointed in terms of the Order dated 24.04.2014 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 stand delegated
to the Administrative Committee while the Advisory Committee shall be
deemed to be the Committee constituted in terms of Section 20 of the TC Act.
It is made clear that all the members including the Chairpersons of the
Administrative Committee and the Advisory Committee must be Hindus and
fulfil the requirements in Section 2(aa) of the TC Act.
All the other Committees constituted in terms of various orders passed
by this Court shall continue for four months, and it shall be upto the Advisory
Committee to consider whether the services of those Committees are required
or not.
 It must also be stated that the present security arrangements as deployed
by the State Government shall be continued, but the expenses in that behalf
shall be borne by the Temple hereafter.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
214
116. The Administrative Committee and the Advisory Committee shall do
well to discharge all their functions including performance of the worship of
the deity, maintenance of its properties, diligently and in the best interest of the
Temple, and provide adequate and requisite facilities to the worshippers; and
more particularly:-
(a) Preserve all treasures and properties endowed to Sree
Padmanabhaswamy and those belonging to the Temple.
(b) Protect all tenanted properties and take appropriate measures to
ensure reasonable returns from such tenanted properties.
(c) Ensure that all rituals and religious practices are performed in
accordance with the instructions and guidance of the Chief
Thantri of the Temple and according to custom and traditions. In
temporal matters, the Committees shall be guided by the advice
given by the Chief Thanthri. The designation of the Chief
Thanthri shall be done in accordance with the customs and
traditions.
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
215
(d) Shall take appropriate steps to return to the State the amounts
expended by the State Government as catalogued in the Chart in
paragraph No.44 hereinabove.
(e) All the income accruing to the Temple, as well as the offerings
made by the worshippers, shall be expended in the following
manner:
(i) To improve the facilities for the worshippers; and
(ii) For such religious and charitable purposes as the Advisory
Committee may deem appropriate; and
(iii) In investments that will fetch reasonable returns and
ensure that the properties of the Temple are completely safe and
secure.
(f) Recover and retrieve any property or funds of the Temple which
have been put to misuse or have been in unauthorized occupation
or misappropriated.
(g) Shall order audit for the last 25 years as suggested by the learned
Amicus Curiae. The audit shall be conducted by a firm of
reputed Chartered Accountants. The Advisory Committee shall
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
216
also consider what further steps need to be taken for the
preservation of the Temple properties, both movable and
immovable.
(h) Take appropriate steps for conservation of the Temple and its
precincts, as well as for improvement of all the facilities.
(i) Shall consider whether Kallara B is to be opened for the purpose
of inventorization. The interim orders dated 27.11.2014 and
04.07.2017 passed by this Court had recorded that Kallara B was
not opened, and it was directed that inventorization with respect
to said Kallara B be undertaken only after obtaining express
orders from this Court. We deem it appropriate to leave this issue
to the best judgement and discretion of the Committees.
(j) Conduct all the obligations which from time to time were
bestowed on various Committees by this Court including that of
the Selection Committee for Sreekovil.
(k) Shall file Reports in this Court by the second week of December,
2020 stating all the developments in brief till then. The next
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
217
Report shall be filed after the accounts for the year ending
31.03.2021 are audited.
(l) Shall file the audited accounts and the Balance Sheet with the
office of the Accountant General for the State, every year.
117. In light of the specific submission made by the appellants, the appellant
No.1 and his successors shall not be entitled to draw any remuneration for his
or their services as the Manager or Trustee. The Executive Officer appointed
by the Administrative Committee shall be entitled to a modest and reasonable
remuneration to be fixed by the Administrative Committee.
118. 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 following
principal relief:
“Give directions to the Government of India and the Reserve
Bank of India to evolve and implement a mechanism whereby the
treasures of Sree Padmanabha Swamy Temple can be preserved
intact, and at the same time be put to proper and profitable use
without possibilities of corrupt dealings, erosion and
wastage……”
Civil Appeal No. 2732 of 2020 (arising out of SLP(C)No.11295 of 2011) etc.
Sri Marthanda Varma (D) Thr. LRs. & Anr. vs. State of Kerala and ors.
218
In view of the aforementioned directions, nothing further is required to
be done in this Writ Petition. The Writ Petition is accordingly disposed of.
120. Contempt Petition No.493 of 2019 was filed submitting, inter alia, that
certain statements were made by the Temple Guard; and that the then Executive
Officer was protecting said Temple Guard. Considering the nature of
allegations, we see no reason to take cognizance of the same and the Contempt
Petition is dismissed.
121. In the end, we must express our sincere gratitude for the assistance
rendered by the learned Amicus Curiae, and also for his invaluable suggestions
and guidance. We are also grateful to all the persons and members of various
Committees who diligently discharged their obligations in answer to the
suggestions made by this Court from time to time.
…………………….J.
(Uday Umesh Lalit)
……………………J.
(Indu Malhotra)
New Delhi;
July 13, 2020.