(2015) 415 KLW 270

IN THE HIGH COURT OF KERALA AT ERNAKULAM

B.KEMAL PASHA, J.

O.P.(C).No.1103 of 2014

Dated this the 10th day of July, 2015

CMA. NO.119/2013 OF ADDITIONAL DISTRICT COURT, THRISSUR

PETITIONER(S)

V.M. SASI

BY ADVS.SRI.DINESH R.SHENOY, SRI.H.KIRAN, SRI.M.PREMCHAND. 

RESPONDENT(S)

1. KISHORE

2. PARAMEKKAVU DEVASWAM, THRISSUR SWARAJ ROAD, THRISSUR VILLAGE, THRISSUR TALUK, REP. BY ITS PRESIDENT KARNAKA KRISHNANKUTTY MENON @ K.K. MENON, S/O.KUNJANIAN @ RAMAN MENON, MULAMKUNNATHUKAVU, THRISSUR-680 581.

3. PARAMEKKAVU DEVASWOM, THRISSUR SWARAJ ROAD, THRISSUR VILLAGE, THRISSUR TALUK, REP. BY ITS SECRETARY, RAMACHANDRA PISHARADI, S/O.ANAYATH PISHARATH RAGHAVA PISHARADI, CHEMBUKKAVU VILLAGE, THRISSUR TALUK-680 020. 

R1 BY ADV. SRI.ANCHAL C.VIJAYAN. R2 & R3 BY SRI.M.RAMESH CHANDER, SENIOR ADVOCATE. ADV. SRI.ANEESH JOSEPH.

J U D G M E N T 

Can a person belongs to the sect of 'Veluthedathu Nair' be treated as 'Nair' and can he be treated as a 'Malayalee Savarna Hindu' within the meaning of Exhibit P4 By-laws of the 'Paramekkavu Devaswom'? 

2. The 3rd defendant in O.S.No.2628 of 2013 of the Munsiff's Court, Thrissur is the petitioner herein. The suit is one filed by the 1st respondent as plaintiff for a decree of mandatory injunction for the removal of the name of the petitioner herein, who is the 3rd defendant, from the membership register of the Paramekkavu Devaswom, on the ground that the 3rd defendant, who belongs to 'Veluthedan' caste is not coming within the definition of 'Savarna Hindu' and therefore, he is not qualified and entitled to be a member of the 'Paramekkavu Devaswom'. Along with the suit, Exhibit P1 I.A. No.10026 of 2013 was filed seeking an order of temporary injunction, thereby restraining the 3rd defendant from participating in any of the trusts, committees or administrative body of the 'Paramekkavu Devaswom', or from contesting the election to any of such bodies or to be a member in any of such bodies. Even though the petitioner and defendants 1 and 2 have seriously challenged the said I.A. through counter affidavit, the court below, through Exhibit P5 order, allowed the I.A., thereby restraining the petitioner herein, through an order of temporary injunction, from contesting the election and from holding any post in the new governing body of the 'Paramekkavu Devaswom'.

3. The petitioner has challenged Exhibit P5 order, through C.M.A.No.119 of 2013 before the District Court, Thrissur. The learned Ist Additional District Judge, Thrissur has approved the findings entered by the trial court in Exhibit P5 and has virtually recited the order and dismissed the C.M.A., through Exhibit P6 judgment. The said judgment is under challenge.

4. Heard Adv.Sri.Dinesh R. Shenoy, the learned counsel for the petitioner, Adv.Sri. Anchal C. Vijayan, the learned counsel for the 1st respondent and Adv.Sri.M. Ramesh Chander, the learned Standing Counsel for respondents 2 and 3.

5. The learned counsel for the petitioner has pointed out that the petitioner has been a member of the committee of the 'Paramekkavu Devaswom', right from the year 1987 onwards and he has officiated as leader of many of the committees of the 'Paramekkavu Devaswom' and he has been actively in the leadership for conducting the 'Thrissur Pooram' Festival every year, for the last many years. It is also pointed out that he is the elected Vice President of the 'Paramekkavu Devaswom'. It is argued that he is a 'Malayalee Savarna Hindu' within the meaning of Clause 3 of Exhibit P4 By-laws of the 'Paramekkavu Devaswom'. It is further argued that, in order to enter into a finding that such a person cannot be treated as a 'Malayalee Savarna Hindu', both the courts below have limited the consideration of the aspect by placing heavy reliance on the fact that the sect of 'Veluthedathu Nairs' are being treated as an Other Backward Community in the case of Government appointments, appointments to public sector undertakings, and in the matter of eduction, based on the constitutional perspective. According to the learned counsel for the petitioner, such a view taken by both the courts below is apparently unfounded and incorrect. It is also argued that such a view is not palatable or digestible in this 21st century, when we had wiped out the most accursed system of untouchability from this great Nation. The said arguments have been fully endorsed and supported by the learned counsel for respondents 2 and 3.

6. Per contra, the learned counsel for the 1st respondent has argued that the petitioner being a 'Veluthedathu Nair' is of a lower caste when compared to 'Nairs' and at any stretch of imagination, the petitioner cannot be treated as a 'Malayalee Savarna Hindu'. It is argued that it is a very special provision mentioned in the By-laws for a qualification to become a member of the 'Paramekkavu Devaswom' that he should be a 'Malayalee Savarna Hindu'. It is also argued by the learned counsel for the 1st respondent that as per 'Kuzhikkattu Pacha', which is the 'Thanthrik' text being educated to persons becoming 'Thanthris', in case of entry of 'Veluthedathu Nair, Vilakkithala Nair' etc. near to the place of the sanctum sanctorum in a temple, it would result in desecrating the temple, and in such cases, the purification or sublimation of the temple have to be done. Therefore, according to the learned counsel for the 1st respondent, at any stretch of imagination, such a person cannot be considered as a 'Savarna Hindu'.

7. All other matters considered by the courts below are merely academic and do not relate to the crux of the matter. From the rival arguments forwarded by both sides, first of all, it has to be considered as to who is a 'Hindu'? The next question to be considered is the status of a 'Nair' in the 'Varnas' and whether the sect of 'Veluthedathu Nair' will come within the category of 'Nairs'. The further question to be considered is whether 'Nairs' can be considered as a 'Savarna Hindu' and in such case, whether 'Veluthedathu Nair' also can be considered as a 'Savarna Hindu'.

8. The learned counsel for the 1st respondent has contended that the petitioner is guilty of incorporating the term 'Nair' also along with the term 'Veluthedathu' in showing his caste name in the records. The argument is that the petitioner ought to have shown his caste name as 'Veluthedathu' or 'Veluthedan' and should not have used the term 'Nair' by prefixing the term 'Veluthedathu'.

9. 

Seeds of Modern Public Law in Ancient Indian Jurisprudence by Rama Jois

2nd Edition, Page 171 says:- 

“Bharathiya values regarding human rights perhaps have the oldest pedigree. Rigveda which is regarded as the oldest document, declares that all human beings are equal and they are brothers”. Mandala-5, Sukta-6, Mantra-5 incorporated in Rigveda, the most ancient of the Vedas, says: “No one is superior (Ajyestasa) or inferior (akanishtasa). All are brothers (ete bharataraha). All should strive for the interests of all and should progress collectively”.

10. In ancient India, equality among human beings was the landmark. Among the members of a particular 'Varna', equality was the landmark and no one was considered as superior or inferior. But in the passage of time, somebody had considered themselves as superiors over others, merely on account of self imposed superiority. They wanted to treat others as inferiors to them.

11. In 

P. Ramanatha Aiyar's The Major Law Lexicon: 4th Edition 2010 Volume 3 Page 3076

it was held that: 

“The term Hindu is defined for the application of Hindu Law as a person includes not only; those who are Hindu by religion; but also those who are commonly known as such.” 

12. 

MULLA's Principles of Hindu Law (Fourteenth Edition) paragraph 671 

was relied on by the Supreme Court in 

C.W.T. v. R.Sridharan [(1976) 4 SCC 489]

wherein it was held in paragraph 17 that: 

“The word 'Hindu' does not denote any particular religion or community. During the last hundred years and more it has been a nomenclature used to refer comprehensively to various categories of people for purposes of personal law. It has been applied to dissenters and non-conformists and even to those who have entirely repudiated Brahminism. It has been applied to various sects and beliefs which at various periods and in circumstances developed out of, or spit off from, the Hindu system but whose members have nevertheless continued to live under the Hindu Law and the Courts have generally put a liberal construction upon enactments relating to the personal law applicable to Hindus.” 

13. Dr. Whitely Stocks has pointed out that: 

“The collocation of the words Hindu, Mahomedian, or Budhish makes it reasonably plain that the term Budhish makes it reasonably plain that the term Hindu is used as theological terms and denotes only persons, who profess any faith of the Brahminical religion or the religion of Puranas.” 

14. In 

Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya [AIR 1996 SC 1119] 

it was held that: 

“The historical and etymological genesis of the word “Hindu” has given rise to a controversy among indologists, but the view generally accepted by scholars appears to be that the word “Hindu” is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. “That part of the great Aryan race”, says Monier Willaims, “Which immigrated from Central Asia, through the mountain passes into India, settled first in the district near the river Sindhu (now called the Indus). The Persians pronounced this word Hindu and named their Aryan brethren Hindus. The Greeks, who probably gained their first ideas of India from the Persians, dropped the hard aspirate and called the Hindus “INDOI”. The Encyclopedia of Religion and Ethics, Vol.VI has described Hinduism as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire.” 

15. In 

Commissioner, H.R.C.E. Mysore v. Ratnavarma Heggde [(1977) 1 SC 525] 

in paragraph 43; it was held that: 

“The term 'Hindu' has a fairly wide connotations. In origin it indicated people living in the Indus region. It is only by subsequent usage and extension of meaning that the word acquired a religious sense, therefore in this sense, a more limited significance. The term 'Hindu' though not defined in the Act, may be presumed to stand for people of India with certain religious beliefs held or forms of religious worship practised by people of India originally.” 

16. In 

Bail Patil v. Union of India [AIR 2005 SC 3172]

it was held that: 

“The word 'Hindu' conveys the image of diverse groups of communities living in India. A 'Hindu' can be identified only on the basis of his caste as an upper caste, Brahmin, Kshatriya or Vaish or of lower caste described in ancient India as shudras. The aboriginals who have no caste were considered as distinct from four castes or varnas of Hindu society and they have been treated in the constitution as scheduled Tribes and the Shudras are included in the Constitution as Scheduled Castes with special privileges and treatment for their upliftment.” 

17. In 

M.P.Gopalkrishnan Nair v. State of Kerala, [AIR 2005 SC 3053]

it was held that: 

“A 'Hindu' may or may not be a person professing Hindu religion or a believer in temple worship. A Hindu has a right to choose his own method of worship. The term 'Hindu' is a comprehensive expression giving the widest freedom to people of all hues, opinions, philosophies and beliefs to come within its fold.” 

From the definitions given to the term Hindu, it can be concluded that 'Hindu' is a theological term and it denotes only persons who profess any faith of Brahminical religion or religion of Puranas.

18. When dealing with 'Varnas', it has to be considered that there are only four 'Varnas' namely, 'Brahmanas', 'Kshathriyas', 'Vaisyas' and 'Shudras', collectively called “Chathurvarnyam”. It seems that the 'Nair' communities as a whole will come within the category of the fourth 'Varna'. Therefore, prima facie, it can be seen that a person, who holds his caste name as 'Nair' along with other sects, are also persons coming within the fourth category of 'Varna' among 'Hindu'. In clause 3 of Exhibit P4, the main qualification for a person to become a member of the 'Paramekkavu Devaswom' is that he should hail from any of the 'Karas' known as 'Paramekkavu', 'Chembukkavu', 'Kizhakkumpattukara', 'Veliyannoor' and 'Koorkancherry'. Then, the next qualification is that he should be a 'Malayalee'. Therefore, even if a person is a Tamil Brahmin, as rightly pointed out by the learned counsel for the 1st respondent, he should not be entitled to become a member of the 'Paramekkavu Devaswom', as he is not hailing from the State of Kerala. Admittedly, the petitioner is a 'Malayalee'. The next qualification is that such a 'Malayalee' should be a 'Savarna Hindu'. Who is a 'Savarna Hindu'? 19. The learned counsel for the 1st respondent has seriously canvased an argument that Exhibit P4 By-laws is of the year 1103 ME; in short, which came into force in the pre-constitution period and therefore, the freedoms guaranteed in the constitution cannot be applied to the qualifications prescribed in Exhibit P4. In the same breath, he argues that when a person is receiving benefits of reservation, such a person cannot be treated as a 'Savarna Hindu'; because he is of a lower strata, which is considered to be a member of a lower category in the religion and therefore, he is not a 'Savarna Hindu'. With respect, it can be said that the said two arguments will not go together.

20. The learned counsel for the petitioner has pointed out that in all the Dictionaries and text books, the word 'Savarna' is defined as a person coming within any of the four 'Varnas'. In 'Shabdatharavali', 9th Edition, page No.1704, the term 'Savarna' has been explained as, 'A person coming within the same caste or a person coming within an equal caste or a person coming within any of the Varnas in the Chathurvarnyam'. The New Malayalam Dictionary by C.Madhavan Pillai, Volume 1, wherein an 'Avarna' is defined, in page No.253, as: 'A person belonging to the deprived caste or a person does not belong to the Chathurvarnyam'. Therefore, the term 'Avarna' is commonly meant as relating to a person who is not coming within any of the four 'Varnas'. The aforesaid New Malayalam Dictionary gives the meaning of the term 'Savarnan' in page No.991, as: 'a person coming within the Chathurvarnya, that means any of the four Varnas'.

21. The learned counsel for the petitioner has invited the attention of this Court to 'Sarvavignjanakosam', Volume 8, which says that depending upon the works being done or the cultivations being carried out by them, persons were categorized differently even when they belong to the same caste. It says that most of the 'Nairs' were persons not doing any manual work. The persons, who were working at the temple and residing within the temple, were also to be treated as 'Nairs'. It further denotes that 'Nairs' are coming within the 'Varna' of 'Shudra'. It further says that 'Nairs' were persons of upper category when compared to persons, who were being treated as untouchables. At the same time, it does not say that those untouchables were not being treated as persons coming within the 'Shudra Varna'.

22. Over and above all these, the learned counsel for the petitioner has invited the attention of this Court to the decision in 

Nani Amma v. Kochugovindan Nair [1962 KLT 979]

The question considered by His Lordship Justice M.Madhavan Nair was with regard to the law of succession applicable to 'Veluthedans' in Cochin Area. In the decision noted (Supra), it was held that there are four lower caste 'Nairs', in which 'Veluthedan' (washer men) is the third one. Even though, it is of a lower caste, it seems that 'Veluthedath Nair' is also considered as one of the categories of 'Nairs'. It was held therein that even though such four lower caste 'Nairs' are also there, such four sub divisions is not one contemplated in the legislation. It was held therein that: “If Veluthedans form a sub-caste of the Nayar community- whether such sub-caste be of the higher order or lower order is immaterial – they are Nayars and the Cochin Nayar, Act, which applies to all Nayars in Cochin, must necessarily apply to them as well. There is absolutely no warrant to hold that the Act applies only to the higher sub-castes of Nayars and not to the lower sub-castes among them. The Act makes no such distinction; and it is not for the Court to import any against the expression of the Act.” From the said discussions, it was concluded that even though 'Veluthedath Nair' was considered to be a lower category among 'Nairs', it was held that a 'Veluthedath Nair' is also a 'Nair' for all practical purposes and in the eye of law.

23. Going by the decision in Nani Amma's case (Supra), the fact that in ancient days of desecration and untouchability, 'Veluthedans' were not allowed to enter the temples where 'Nairs' were allowed free entry, is of little relevance. It seems that such terms of desecration and untouchability etc. are not known to the modern jurisprudence. Even though, 'Thanthris' or persons associated with 'Thanthrik' rites or education can afford to have terms like 'untouchability' or 'desecration' etc. in the sense noted in 'Kuzhikkattupacha', the judicial exercise can only ill-afford it. Such terms in that sense are not known to the modern jurisprudence.

24. Nani Amma's case (Supra) is based on the decision in 

Velayudhan Krishnan v. Velayudhan Govindan (21 TLJ. 851)

wherein it was held that 'Veluthedans' are to be known as 'Nairs' and are governed by the Nair Act. In Nani Amma's case (Supra) it was further held that the Memorandum of 'Cochin Nair Mahasamajam' reckons 'Veluthedans' as a sub-sect of the 'Nairs' and that the opinions of the great leaders of the 'Nair' community necessarily tantamount to recognition of the sect of 'Veluthedans' being a sub-sect of 'Nair' community.

25. The learned counsel for the petitioner is relying on Exhibit P7 N.S.S. Charithram, 1st Volume, wherein it was noted that there are 18 sub-sects in the 'Nair' community. The first three are 'Kiriyam', 'Illam' and 'Swaroopam'. In the remaining, persons working at the temples, like the 'Marar' sub-sect, persons handling 'chembu vela', persons applying tiles to the temple, persons making earthen pots, persons known as 'Chakkala Nayar' etc. are also such sub-sects of the Nair community. Persons doing the business of milk wending were known as 'Idacherry Nair,' other persons doing business in the 'Nair' community were known as 'Vyapari Nair'. Likewise, persons doing washing works are known as 'Veluthedath Nair'. Persons, who are working as barbers were known as 'Vilakkithala Nair.' Similarly, other sub-sets are also identified by the N.S.S. as persons coming within the 'Nair' Community.

26. Exhibit P8 is the certificate issued by the 'N.S.S. Karayogam', which shows that the petitioner is a member of the N.S.S. Karayogam No.1990.

27. The learned counsel for the 1st respondent has produced Exhibit R1(u), which is the By-laws of the 'N.S.S. Karayogam', which shows that other 'Hindus', who are well wishers of the 'Karayogam' can also be enrolled as members of the 'Karayogam'. Based on that clause, the learned counsel for the 1st respondent has put forwarded an argument that even if a person is not a 'Nair', if he belongs to the Hindu religion, he could also be enrolled as a member of the 'Karayogam', provided he is a well wisher of the 'Karayogam' and therefore, the mere membership of the petitioner in the 'N.S.S. Karayogam' alone cannot be reckoned for the purpose of categorizing him as a 'Nair'. The By-laws says that for enrolling any such member, a special sanction from the Registrar is required.

28. The learned counsel for the 1st respondent has placed heavy reliance on “Kuzhikkattu Pacha”, to show that when persons like 'Veluthedath Nair', who makes an entry near to the sanctum sanctorum of the temple, makes the temple impure, such a person cannot be permitted to be in the administrative body of 'Paramekkavu Devaswom'. If as a matter of fact, the questions of sublimation or untouchability have any relevancy for deciding the qualification to be a member of the 'Paramekkavu Devaswom', definitely that should have found a place in the By-laws of the 'Paramekkavu Devaswom'.

29. As rightly pointed out by the learned counsel for the petitioner, many eminent scholars and several leaders of the 'Nair' community were the leaders of the 'Paramekkavu Devaswom'. It was during the tenure of such eminent persons, who were ruling the 'Paramekkavu Devaswom' that the present petitioner was also enrolled as a member of the 'Paramekkavu Devaswom' and was elected in the administrative body of the 'Paramekkavu Devaswom' in the year 1987. If as a matter of fact, such a person was considered to be a person, whose presence could impure or desecrate the temple, definitely such a qualification should also have been incorporated in the By-laws of the 'Devaswom'. At the same time, the By-laws of the 'Devaswom' deals with the qualification of a person to become a member of the 'Devaswom' as a 'Malayalee Savarna Hindu'. The same is carefully worded, by making 'Avarnas' alone as persons, who are not qualified to be a member of the 'Devaswom'. If a person is a 'Savarna Hindu', he is qualified to be a member.

30. From the forgoing discussions, it has come out that the petitioner belongs to the sub-sect of 'Veluthedath Nair' is, no doubt, a 'Nair' for all practical purposes and therefore, he cannot be treated as an 'Avarna Hindu'. When he belongs to a sub-sect of the 'Nair' community, he squarely falls within the category of the fourth 'Varna' namely 'Shudra' and therefore, he is a 'Savarna Hindu'. The terms like untouchability etc. are alien to Exhibit P4 By-laws of the 'Paramekkavu Devaswom'. It does not deal with the question of impurity, untouchability etc., whereas, it deals with the question of 'Avarna' or 'Savarna Hindus'. When the petitioner is a person belongs to a 'Savarna Hindu', he is entitled to be a member of the 'Paramekkavu Devaswom'.

31. It seems that both the courts below were carried away by holding a person as not a 'Savarna', in case, he is entitled to some sort of reservation in education or appointments based on the constitutional protections granted to some weaker sects. Merely because of such a constitutional protection, it cannot be said that those persons are 'untouchables' or 'Avarnas'. By enjoying such a constitutional protection available to the weaker strata, one cannot become an 'Avarna'. Even when they are 'Savarnas', weaker sections are entitled to such constitutional protections.

32. Finally, the learned counsel for the 1st respondent has argued that earlier there was a suit before the Munsiff court, Thrissur as O.S.No.3018 of 2009 by challenging the qualification prescribed for persons to become the member of the 'Paramekkavu Devaswom' in the By-laws. It was argued that in that suit, the 'Paramekkavu Devaswom' had filed a written statement by contending that persons, who are enjoying reservation in the question of education or employment, are not entitled to become members of the 'Paramekkavu Devaswom' as they are not 'Savarna Hindu'. 'Paramekkavu Devaswom' cannot take such a stand. 'Paramekkavu Devaswom' has to go by its own By-laws. They will have to decide the question independently as to whether a person is a 'Savarna Hindu' or an 'Avarna'. Such a decision should be based on accepted legal principles and not in common parlance by considering that a person, who is enjoying a reservation considers himself to be an 'Avarna'. Such an interpretation of the term is not permissible in the eye of law. Whatever be such contentions taken by the 'Paramekkavu Devaswom', the petitioner is not bound by any such concession even if made by the 'Paramekkavu Devaswom'.

33. It seems that the appellate court has simply endorsed the findings entered by the trial court as gospel truths. In fact, the order passed by the learned Munsiff was repeated and recited as such by the appellate court without applying mind.

34. From the discussions made above, it has come out that the decisions taken by the trial court, which has been approved by the appellate court in the C.M.A., have resulted in substantial miscarriage of justice. The said decisions rendered by both the courts below are against known legal principles. Therefore, both the said orders passed by the courts below are liable to be set aside. I.A.No.10026 of 2013 is liable to be dismissed. Of course, it is open to the 1st respondent to challenge the eligibility of the petitioner to become a member or office bearer of the 'Paramekkavu Devaswom' on any grounds other than the ground taken up here. The question whether the petitioner is a 'Savarna Hindu' or not does not arise for consideration in any further debate in the matter. 

With the aforesaid observations, this Original Petition is allowed. The orders passed by the courts below on I.A.No.10026 of 2013 are set aside. I.A.No.10026 of 2013 stands dismissed.