Kerala High Court
For Information Purpose Only vs Radhakrishnan K on 26 March, 2021
IA/1/2020 IN RSA 560/2017 1 / 11
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Friday,the 26th day of March 2021/5th Chaithra, 1943
IA/1/2020 IN RSA/560/2017
For information purpose only
Against AS No.18/2015 of the II ADDITIONAL SUB COURT,ERNAKULAM
Against OS No.719/2010 of the I ADDITIONAL MUNSIFF COURT,ERNAKULAM
APPLICANTS/APPELLANTS:
1.RADHAKRISHNAN K.,
S/O. (LATE) AMMINI AMMA K, AGED 67, KADACKUZHY HOUSE,
KUNDANNUR DESOM, MARADU VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT - 682 304.
2.VALSALA KUMAR,
S/O. (LATE) VISWANATHA MENON, AGED 49,KADACKUZHY HOUSE,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
3.SREERAJ M.S.,
S/O. SREEDHARA MENON, AGED 45,KADACKUZHY RAMANEEYAM HOUSE,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
4.MALATHY AMMA. K,
D/O. (LATE) T.K. KOCHUNNI MENON, AGED 88,KADEKUZHI HOUSE,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
5.SARASWATHY AMMA. K.,
D/O. (LATE) T.K. KOCHUNNI MENON, AGED 86,KADEKUZHI HOUSE,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
6.AMBUJAM. K,
D/O. (LATE) T.K. KOCHUNNI MENON, AGED 79,KADEKUZHI HOUSE,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
IA/1/2020 IN RSA 560/2017 2 / 11
7.RAJESWARY. K,
D/O. (LATE) C.K. RAMAN NAMBIAR, AGED 64,RAJESWARI KRIPA,
KADEKUZHI, KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
8.JAYAKUMAR. K,
S/O. (LATE) C.K. RAMAN NAMBIAR, AGED 62,SOWPARNIKA, KADEKUZHI,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
For information purpose only
TALUK,ERNAKULAM DISTRICT - 682 304.
9.JAYASREE. K,
D/O. (LATE) B. SIVASANKARA MENON, AGED 56, POURNAMI, KADEKUZHI,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
10.VIJAYAKUMARI K.V.,
D/O. (LATE) I. VISWANATHA MENON, AGED 51,ROHINI, KADEKUZHI,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
11.USHA K.R,
D/O.(LATE) K. RAGHAVA MENON, AGED 51,USHUS, KADEKUZHI,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
12.GOPAKUMAR. K,
S/O. (LATE) B. SIVASANKARA MENON, AGED 49,KADEKUZHI, KUNDANNUR
DESOM,MARADU VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT
- 682 304.
13.SREEKUMAR. K,
S/O.(LATE) K. RAGHAVA MENON, AGED 49,USHUS, KADEKUZHI,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
TALUK,ERNAKULAM DISTRICT - 682 304.
14.LATHIKA. V. MENON,
D/O. (LATE) VISWANATHA MENON, AGED 46,KADEKUZHI, KUNDANNUR
DESOM,MARADU VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT
- 682 304.
15.SUMA M.S.,
D/O.M.G. SREEDHARA MENON, AGED 43,RAMANIYAM, KADEKUZHI,
KUNDANNUR DESOM,MARADU VILLAGE, KANAYANNUR
IA/1/2020 IN RSA 560/2017 3 / 11
TALUK,ERNAKULAM DISTRICT - 682 304.
RESPONDENTS/RESPONDENTS 1 TO 3
1.K.SIVARAMA MENON,AGED 90 ,
S/O (LATE) KUNHIKAVU AMMA,PENSIONER, KADEKUZHI NARAYANAN
KUNJU, KUNDANNOOR, MARADU P.O., PIN - 682 304, KANAYANNUR
TALUK.
For information purpose only
2.K. PRAKASHAN,
S/O. (LATE) KADEKUZHI SANKARA MENON, 62,BUSINESS, RESIDING AT
SURYA, 29/1297, MAPALASSERI ROAD,VYTTILA VILLAGE, ERNAKULAM
DISTRICT, KOCHI - 682 019.
3.K. RAJAGOPALAN MENON,
S/O. (LATE) K. SANKARA MENON, 55,RESIDING AT 'RAGAM', 37/610A,
ROYAL LANE,ELAMKULAM VILLAGE, KADAVANTHRA, KOCHI - 682 020.
Application praying that in the circumstances stated in the affidavit filed therewith the
High Court be pleased to pass an order of temporary injunction restraining Respondent No.1
or his agents from alienating,committing any act of waste or cutting open a road in the plaint
schedule properties in O.S. No.719 of 2010 on the file of the Ist Additional Munsiff's
Court,Ernakulam,pending disposal of the above Regular Second Appeal.
This application coming on for orders upon perusing the application and the affidavit
filed in support thereof, and upon hearing the arguments of M/S P.B.KRISHNAN,
P.B.SUBRAMANYAN, P.M.NEELAKANDAN, SABU GEORGE, S.NITHIN ANCHAL,
Advocates for the petitioner and of M/S MILLU DANDAPANI and MEERA RAMESH,
Advocates for the respondents 1 and 2, the court passed the following
N. ANIL KUMAR, J.
-----------------------------------------
IA Nos. 1 & 2 of 2020
in
RSA No. 560 of 2017
For information purpose only
-----------------------------------------
Dated this the 26th day of March, 2021
ORDER
IA No. 1 of 2020 is filed by the appellants
seeking to issue an order of temporary
injunction restraining the 1st respondent or
his agents from alienating, committing any act
of waste or cutting open a road in the plaint
schedule properties in OS No. 719 of 2010 on
the file of the First Additional Munsiff's
Court, Ernakulam till the disposal of the
Regular Second Appeal.
2. IA No. 2 of 2020 is filed by the respondents
seeking to permit the 1st respondent to give
consent to the Maradu Municipality for
completing the renovation of the remaining
portion of the mud road, which is situated in
RSA No.560/2017
..2..
the L schedule property in the suit, for the
purpose of smooth enjoyment of the same by the
members of the Kadekuzhi family and the public
For information purpose only
at large.
3. The above RSA arises out of OS No. 719 of 2010
on the file of the First Additional Munsiff
Court, Ernakulam. The suit was filed by the
respondents 1 to 3 seeking to frame a scheme
for the management of the affairs of the
Kadekuzhi Sreekrishna Swami Temple and the
management of the Kadekuzhi family properties
set apart for the benefit of the temple.
4. The plaint A schedule property is the temple
and plaint B to P schedule properties are the
properties of the family set apart for the
benefit of the temple.
5. The trial court found that the parties were in
agreement that a scheme can be formulated. The
formulation of the scheme was relegated to the
final decree. The first appellate court has
RSA No.560/2017
..3..
held that plaintiffs 2 and 3 are also members
of Kadekuzhi family and they are also entitled
to participate in the management of the
For information purpose only
temple. The appeal and the memorandum of cross
objection have been dismissed.
6. This RSA was admitted by this Court on
22.06.2017 on the following substantial
questions of law;
"(A) Has the judgment and decree in O.S.No.162
of 1110 ME of the Anjikaimal District Court at
Ernakulam, in regard to the Devaswom and its
properties, been effaced by the Kerala Joint
Hindu Family System (Abolition) Act, 1975?
(B) Is the lower appellate court justified in
holding that plaintiff Nos.2 and 3, who are the
sons of a male member of the Tharawad, are also
members of the Kadekuzhi family?
(C) Is the lower appellate court correct in law
in ignoring the distinction maintained by the
Kerala Joint Hindu Family System (Abolition)
Act, 1975 between the right to property and
status/membership of the Tharawad?
(D) Assuming without conceding that a notional
RSA No.560/2017
..4..
partition has been effected to the suit
properties by the Kerala Joint Hindu Family
System (Abolition) Act, 1975 must not the
scheme to be drawn up in the suit reflect the
For information
membership position andpurpose only
voting right in tune
with the allotment made on the date of notional
partition?"
7. In the affidavit filed in support of the
application, the appellants would contend that
the 1st respondent, who is 94 years old, is
being persuaded to give permission to the
Maradu Municipality to cut open a road through
the plaint schedule properties without the
consent of other family members including the
appellants.
8. In the counter affidavit filed in IA No. 1 of
2020, the respondents 1 and 2 stated that the
majority members of the Kadekuzhi family have
decided to make the road, which is marked as
Annexure R1(a), into a straight road.
According to them, the property, through which
the road passes, is a low lying one and hence,
RSA No.560/2017
..5..
accumulating water on the road making the
pathway dirty and unhealthy. It is further
stated that following the Marumakathayam
For information purpose only
system, out of the 74 family members, 36
members have agreed to surrender for the sake
of the family members to straighten the
pathway in the place of the zig-zag way. Thus,
it is submitted that it is with the consent of
the majority family members that the surrender
has been made by way of Annexure R1(d)
application dated 29.10.2020 under the Kerala
Land Relinquishment Act, 1958.
9. The learned senior counsel for the respondents
would contend that the 1st respondent being the
Manger of the Devaswom, which is a public
institution, is justified in providing a
smooth passage straightening the road and
allowing the authorities to tar the same in
the larger interests of the public. It is
further contended that in case the appellants
RSA No.560/2017
..6..
are aggrieved, the remedy available before
them is to get the matter agitated before the
proper forum constituted under the Land
For information purpose only
Assignment Act and the Rules framed
thereunder. The learned senior counsel further
submitted that 3/4th portion of the road is
concreted by the municipality spending their
fund. The learned senior counsel further
submitted that since the fund sanctioned in
the year lapsed in March 2021, it is only in
the interest of the temple and majority of the
family members and public that requisite
permission may be accorded to the Municipality
to go ahead with the balance work, which is
yet to be completed to a distance of 16
meters.
10.Going by the counter, it is evident that
Ext.R1(d) application was submitted by the 1st
respondent in his capacity as the Manager of
the Devaswom. In view of the substantial
RSA No.560/2017
..7..
questions of law formulated by this Court on
22.06.2017, it is not just and proper on the
part of the 1st respondent to give consent to
For information purpose only
the Municipality under the Land Relinquishment
Act during the pendency of the Regular Second
Appeal. Further, the decree passed by the
trial court and the appellate court for
formulation of the scheme for management of
the Kadekuzhi Sreekrishna Temple and the
temple properties is under challenge in this
appeal.
11.It is necessary to preserve the subject matter
of the suit during the pendency of the appeal.
Surrendering a portion of the property of the
Devaswom to the Government under the Land
Relinquishment Act during the pendency of the
appeal is not in accordance with law.
Certainly, it would vitally affect the merits
of the case. Hence, IA No. 1 of 2020 is
allowed restraining the 1st respondent or his
RSA No.560/2017
..8..
agents from alienating, committing any act of
waste or cutting open a road in the plaint
schedule properties in OS No. 719 of 2010 on
For information purpose only
the file of the First Additional Munsiff's
Court, Ernakulam, pending disposal of this
RSA. Consequently, IA No. 2 of 2020 stands
dismissed.
Sd/-
N. ANIL KUMAR
JUDGE
bka/-
/true copy/ Sd/- ASSISTANT REGISTRAR
