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. 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.

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

1. 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 Gossamee)
2. 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 of heritable property follows the line of inheritance from the founder. (Angurbala Mullick vs. Debabrata Mullick)
3. 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 Requitte)
4. 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.)
5. The effect of the decisions in Ganesh vs. Lal Behary and Bhaba Tarini Debi vs. Asha Lata Debi as the Privy Council pointed out in the latter 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. (The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt)
6. It is settled by the pronouncement of the Judicial Committee in Vidya Varuti v. Balusami 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 Mullick)
7. 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 Mullick)
8. 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. (The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt)
9. 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 Mullick)
10. 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 others)
11. 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 Doss)
12. 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 Doss)
13. 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)

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

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 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. 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 Varma 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.

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

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.

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 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.

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

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

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 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.

I] Bar under Article 363 of the Constitution of India

109. (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

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 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.