In the Supreme Court’s judgment in Sri Marthanda Varma (D) Through Legal Representatives (LR) v. State of Kerala and others, delivered on Monday, the word ‘shebait” occurs 187 times and the word “shebaitship” occurs 72 times.
In the Kerala high court’s judgment in the same case (Uthradam Thirunal Marthanda Varma and Sree Padmanabhaswamy Temple v. Union of India and others), delivered on January 31, 2011, the appeal against which was decided by the Supreme Court on Monday, the word ‘shebait’ occurs only once as an alternative to trustees, archakas or employees and the word ‘shebaitship’ doesn’t occur at all.
Again, the Supreme Court’s judgment refers to the Rulers of Indian States (Abolition of Privileges) Act, 1972 nine times, whereas the Kerala high court’s 2011 judgment is completely silent on its relevance to the discussion.
These twin features succinctly explain why the Kerala high court found that the Travancore royal family was not entitled to manage the affairs of the Sree Padmanabhaswamy temple after 1991, whereas the Supreme Court bench comprising Justices Uday Umesh Lalit and Indu Malhotra, found the family perfectly qualified to do so.
The expression “shebait” is derived from “sewa” which means “service”. Shebait, in literal sense, means one who renders sewa to the idol or a deity. For centuries, the temple had been under the exclusive management of successive rulers from the ruling family of Travancore. The rulers of Travancore, till the signing of the Covenant in May 1949, were managers or shebaits of the Temple.
Sree Chithira Thirunal Balarama Varma, 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. Varma died on July 19, 1991, leaving his younger brother Uthradam Thirunal Marthanda Varma to lay claim to the shebaitship.
All the temples which were under the control and management of the erstwhile princely states of Travancore and Cochin, after the merger of the two princely states, went under the control of the Travancore and Cochin Devaswom Boards.
However, under the Agreement of Accession signed between the two princely states, represented by the kings with the government of India as a party, which came into force from August 1, 1949, the administration of the Sree Padmanabhaswamy Temple was “vested in trust” in the Ruler of Travancore.
It is by virtue of the Covenant in the Accession Agreement and later by operation of Section 18(2) of the Travancore Cochin Hindu Religious Endowments Act, 1950 (TC Act), the management of the Sree Padmanabhaswamy Temple continued to be vested in Trust in the last Ruler of Travancore.
In its judgment on Monday, the Supreme Court has laid down that 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 open to the court to lay down a new rule of succession or alter the rule of succession.
Abolition of Privy Purses
By the Constitution 26th Amendment Act, 1971, the privy purses, privileges and other special rights of the erstwhile rulers of Indian states were abolished by deleting Articles 291 and 362 and by incorporating Article 366(22) in the Constitution. The challenge against it was repelled by the Supreme Court vide judgment rendered by the constitution bench on February 4, 1993 in Raghunathrao Ganapatrao v Union of India.
The Kerala government maintained before the Supreme Court that with the abolition of the concept of Ruler by the Constitution (26th Amendment) Act, 1971, the shebaitship of the royal family ceased to have any effect.
The Supreme Court pointed out that it is the settled law that 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. The shebaitship of the temple had also passed from Ruler to Ruler consistent with the principles of succession otherwise applicable to the royal family, the court held. The Covenant 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, it explained.
The 26th Amendment Act deleted Articles 291 and 362 and inserted Article 363A which expressly stipulates inter alia that any person who was recognised to be the ruler of an Indian state or his successor, shall, cease to be recognised 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 recognised 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 given to the guarantee or assurance given in any Covenant or agreement referred to in Article 291 also ceased to exist.
The relevance of the 1972 Act
In 1972, the parliament enacted the Rulers of Indian States (Abolition of Privileges) Act, 1972, to amend certain enactments consequent on de-recognition 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.
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, the Supreme Court held in its judgment on Monday.
Thus, if the provisions of the TC Act 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 the deletion of Article 362 the concerned provisions would still be operative so long as appropriate steps are not taken by the concerned legislature, the court reasoned.
Despite the 26th 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, the Supreme Court held. But the court also accepted the royal family’s claim that it no longer considered the temple as its private property, and that it only sought shebaitship.
The bench explained that on the day the covenant became effective, the Ruler of the Covenanting State of Travancore was holding the office of the shebait of the Temple, which was not in his official capacity as the ruler; and that the expression “Ruler of Travancore” in the covenant and in the TC Act was only to identify the person, and that official status of the ruler of Travancore had no relation with such administration.
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 court ruled. 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, the bench ruled.
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 Kerala high court, the bench added. 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.
The high court’s reasoning
One of the relevant issues which the Supreme Court didn’t consider is whether the last ruler, who died in 1991, ever considered the temple as family property.
The ruler of Travancore, the late Chithira Thirunal Balarama Varma 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 temple until his death on July 20, 1991, never claimed that the temple was the family temple of the royal family or an individual property of himself.
Even though the last ruler executed a detailed will bequeathing his personal properties, he had not included the temple as his personal property or dealt with the same in the will, the high court reveals in its judgment. The Supreme Court’s judgment is silent on this aspect.
Obviously, if the temple was the family property of the royal family or the private property of the king, then there was no need for a 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 pubic at large and all those who have an interest in the temple.
The last ruler, therefore, was a trustee who has retained the control of the temple for the benefit of the devotees, the state and the public at large, the high court explained in its judgment.
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 the absence of a definition in the TC Act, the definition contained in the constitution’s Article 366(22) has to be adopted to define “ruler,” the high court held.
Only the last ruler fulfils the definition, and no one can acquire that status, which is not heritable. Therefore, none of the successors of the family could claim control or management of the temple under 18(2) of the TC Act after the death of the last Ruler, the high court held.
The high court also relied on the Supreme Court constitution bench’s decision in 1993 which upheld the 26th Amendment to the Constitution, to enable the state government to take over the temple and manage the same by constituting the Devaswom Board or other trust or authority similar to the Guruvayur or Koodalmanikyam Devaswoms or the like. The Supreme Court’s judgment does not answer whether the high court’s reliance on the Constitution bench’s judgment was apt.
After the commencement of the Constitution, the agreements which the erstwhile rulers executed, have ceased to be in force and their powers, privileges etc. emanate from the provisions of the Constitution. The last ruler 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, the high court held. To the high court, “ruler” is not a status that could be acquired through succession.
It is the duty of the courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
Since the temple is a public temple, the court has jurisdiction as parent patriae, the high court had held.
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. Temple vests in state government through succession or escheat, the high court had held, which the Supreme Court has overruled.
Wherever public money is collected by temples and religious institutions, the government has a duty to ensure that such public institutions are accountable to the devotees. 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 high court reasoned.
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 the temple will become a major tourist attraction and income earner, the high court had suggested.
On Monday, the Supreme Court left these matters to be decided by the administrative committee and the advisory committee to be set up in accordance with the legal provisions.