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By Ms. Hariniyadav. D


Custom has always been part of mankind. Even before the laws were codified and regulated, men followed the customs and adhered to the traditions practised in their territory. Therefore, custom has consistently been identified as an unwritten law and was vital in the formulation of the current laws.


Custom is generally defined as a practice or usage common to many or to a particular place or class or habitual with an individual. It is further expressed as a long-established practice which has evolved as an unwritten law. Ancient custom is generally regarded as a just foundation of many laws in every system of jurisprudence.[i] In India, customs are considered are recognised as a source of law. Article 13(3) of the Constitution of India, 1950 provides that customs or usages in the territory of India also falls under the ambit of law. Thus, the significance of customs is also recognised by the Constitution and various other judicial decisions. However, not all customs are legal in nature. There are few essentials to determine the legality of the customs. They are:

Antiquity: It must be proved that the custom is in existence since time immemorial.

Continuity: It must have been practised continuously and should be uniform in nature.

Reasonableness: A custom must be reasonable. For declaring a custom inapplicable on the ground of unreasonableness, it will have to be shown that it is obviously opposed to reason.

Conformity with statute: A custom, to be valid, must conform with the existing statutes. Although custom is important, it cannot override the law.

Consistency: Custom must not come into conflict with the other established customs. It must be not contradict the public policy.[ii]


The recent judgment rendered by the Supreme Court, on the Travancore Padmanabhaswamy Temple paved way for the customs to prevail in all cases. The special leave petition was filed by Sri Marthanda Varma against the judgment rendered by the Kerala High Court in 2011. Sri Marthanda Varma was the younger brother of Balarama Varma who was the former ruler of Travancore . He had entered into an agreement with with the Government of India in May 1949 and consequently died on 19.07.1991. The Travancore-Cochin Hindu Religious Institutions Act, was enacted in pursuance to the agreement in 1950. The Act had specific provisions in regard to the Padmanabhaswamy Temple and its administration. The major issue which arose before the Kerala High Court was whether the younger brother of the last Ruler of Travancore can 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 and could he claim the ownership, control and management of the ancient Padmanabhaswamy Temple located in Trivandrum. The High Court concluded that after the amendment, of the definition of “Ruler” in Article 366 (22) of the Constitution of India in 1971, Sri Marthanda Varma could not claim to be in control or in the management of the Temple as successor to the last Ruler.[iii] However, the Supreme Court altered the Kerala High Court’s decision and pronounced 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. The Court placed reliance on Annasami Pillai v. Ramakrishna Mudaliar,[iv] wherein the Hon’ble Supreme Court laid down that 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.


A perusal of the judgment delivered by Uday Umesh Lalit, J & Indu Malhotra, J gives rise to two concepts. Firstly, the customary practises in India is given huge recognition. Secondly, it elaborates about the theory of Shebaitship. 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. Since the relationship of the trustees with the Temple is in the nature of a shebaitship which is also a trust in its broad sense. It signifies a fiduciary relation under which a person having control over a property is bound to use that property for specified objects . The Court also held that the shebaitship is considered to be a property and it devolves like any other property according to the ordinary Hindu law of inheritance. Thus, when a deity is installed, the shebaitship remains in the founder and his heirs. In the instant case, since the Shebaitship was vested in the Ruler of Travancore, it will be governed according to the principles of succession and custom. Therefore, when it comes to the matters concerning the administration of the Temple, and the properties of the Temple, the expression the “Ruler of Travancore” in Chapter III of the Travancore-Cochin Hindu Religious Institutions Act, 1950 Act would mean the successor in accordance with the prevalent law and custom.[v]


Generally, all customs must comply with the laws of the land. However, in Marthanda Varma vs State of Kerala[vi], the Hon’ble Supreme Court interpreted the provisions of the Constitution and the Travancore Cochin Act, 1950 in a harmonious manner to declare the rights of the the petitioner and granted acceptance to the prevailing custom of the temple. Therefore, this case will be considered as a milestone in the history of customs and laws of succession.

[i] D.F.Mulla, Principles of Hindu Law 56 (16th Edition, N.M. Tripathi Private 1990) [ii] Srinivasachariar v. Thatha Desika Thathachariar, (1970) 83 Mad LW 407 at 416 [iii] Uthradam Thirunal Marthanda Varma v. Union of India, 2011 SCC OnLine Ker 523 [iv] Annasami Pillai v. Ramakrishna Mudaliar, AIR 1954 SC 606 [v] Marthanda Varma v. State of Kerala, 2012 SCC OnLine SC 1134 [vi] Ibid.

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