Sunday 25 September 2016

Who is Hindu as per Hindu law?



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."


IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      
                FRIDAY, THE 10TH DAYOF JULY 2015

                                  OP(C).No. 1103 of 2014 (O)
                                   
           V.M. SASI, S/O.VELUTHEDATHU MANI,
          

         KISHORE, S/O.KURUPPALATH GANGADEVI,
          

                   B.KEMAL PASHA, J.
                 


           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.



                                B.KEMAL PASHA
                                      JUDGE





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