Naluvila Bhagavathi Devaswom ... vs Omanakumari
2022 Latest Caselaw 9836 Ker

                        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                         THE HONOURABLE MRS. JUSTICE M.R.ANITHA

                WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                                   RSA NO. 711 OF 2020

            AGAINST THE ORDER/JUDGMENT IN AS 21/2018 OF SUB COURT, CHENGANNUR

                         OS 105/2006 OF MUNSIFF COURT,CHENGANNUR

APPELLANTS/APPELLANTS 1, 2, 4 AND 5/DEFENDANTS 1, 4, 6 & 7:
      1      NALUVILA BHAGAVATHI DEVASWOM TRUST
             ENNAKKADU VILLAGE, CHENGANNUR TALUK, REP.BY ITS PRESENT PERSON IN
             POSSESSION-DILEEP AGED 37 YEARS, S/O.LATE SOMANATHAN PILLAI,
             KADUVINAL HOUSE, ENNAKKADU MURI, ENNAKKADU VILLAGE, CHENGANNUR
             TALUK-689 624.
      2      VALSALA KUNJAMMA
             AGED 65 YEARS
             W/O.LATE SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI,
             ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
      3      DILEEP
             AGED 37 YEARS
             S/O.LATE SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI,
             ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
      4      PARVATHY
             AGED 35 YEARS
             D/O.LATE SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI,
             ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
             BY ADV N.ASHOK KUMAR

RESPONDENTS/RESPONDENTS 1 TO 3 & APPELLANT NO.3/PLAINTIFFS 1 TO 3 & DEFENDANT

NO.5:
        1        OMANAKUMARI
                 AGED 69 YEARS, D/O.JANAKIAMMA, KADUVINAL VADAKKETHIL HOUSE,
                 ENNAKKADU MURI, ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
        2        SIBIN K KARNAVAR
                 AGED 36 YEARS
                 S/O.OMANAKUMARI, KADUVINAL VADAKKETHIL HOUSE, ENNAKKADU MURI,
                 ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
        3        UMADEVI
                 AGED 62 YEARS
                 D/O.PONNAMMA, KADUVINAL THEKKKETHIL HOUSE, ENNAKKADU MURI,
                 ENNAKKADU VILLAGE, CHENGANNUR TALUK-689 624.
        4        RAJALAKSHMI
                 AGED 39 YEARS
                 D/O.SOMANATHA PILLAI, KADUVINAL HOUSE, ENNAKKADU MURI, ENNAKKADU
                 VILLAGE, CHENGANNUR TALUK-689 624.
                 BY ADVS.
                 K.V.SOHAN
                 ATUL SOHAN
                 SRI.S.SANDEEP (S-3458)
                 BIJO MATHEW JOY

        THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE

COURT ON 31.08.2022 DELIVERED THE FOLLOWING:
 R.S.A.No.711/2020
                                 2




                           JUDGMENT

This appeal has been directed against the judgment and

decree in A.S.No.21/2018 on the file of Subordinate Judge's

Court, Chengannur which arose out of the judgment and decree

in O.S.No.105/2006 on the file of Munsiff's Court, Chengannur.

2. Appellants are the defendants 1, 4, 6 & 7. The suit was

one for declaration, for removal of trustee and for rendition of

accounts. The plaintiffs and defendants 2 and 3 and additional

defendants 4 to 7 are members of Kaduvinal family. First

defendant is the Naluvila Bhagavathy Devaswom Trust, is owned

by the Kaduvinal family trust. The temple is situated in the

property having an extent of 48.80 Ares, comprised in resurvey

No.2/1 and it belongs to the family trust. The members of the

family are beneficiaries and are having right to administer the

temple. The members of the family executed a partition deed

No.4343/1951 of Mannar Sub Registry Office. There is a

stipulation in the partition deed that administration of the temple

is to be done based on seniority and custom and further that the

administration will be carried out by the first party to the Deed,

Neelakanda Pillai during his lifetime and thereafter it devolves R.S.A.No.711/2020

upon the person next in the order of seniority. Neelakanda Pillai

died in the year 1996. Thereafter, Raghavan Pillai administered

the temple on the basis of seniority, who is the father of the

plaintiffs. Since Raghavan Pillai was incapacitated due to old-age

ailments and plaintiffs were also preoccupied with the family

affairs, administration of the temple was entrusted with the

second defendant, who is the nephew of plaintiffs' father. On the

death of the plaintiffs' father, the right to administer the temple

vested with the plaintiffs as per the stipulation in the partition

deed. But the second defendant is claiming right over the temple

and its properties on the basis of a Will executed by Neelakanda

Pillai, the former Karnavar, who have no right to execute a Will

with respect to the temple and the properties. That Will is void

ab initio and is not binding on the other family members. The

income from the temple has been increased considerably during

the last 10 years and the defendant is appropriating the income

without maintaining proper accounts. So the plaint schedule

properties are to be declared as the assets of the Trust and

administration of the temple is to be entrusted to the first

plaintiff after divesting the second respondent from its

administration. Though originally a scheme was sought to be R.S.A.No.711/2020

framed with regard to the administration of the temple, that

prayer was subsequently deleted.

3. The second defendant filed written statement

contending that first defendant - temple never functioned as a

Trust and its administration is being conducted in accordance

with the stipulations in the family documents and title deeds and

based on Oorazhma system. The right over the temple and its

properties is vested with Karnavar of Kaduvinal family and

administration is managed by thavazhy members. It is denied

that first defendant is a family trust. It is open for the whole

inhabitants in the locality for worship. Plaintiffs are not born out

of the legal marriage of the deceased Raghavan Pillai and is not

entitled for the administration of the temple. The first defendant

is administering the affairs of the temple as Oorazhma right

holder based on the Will No.51/91 of Chengannur SRO executed

by the karnavar of Kaduvinal family, Sri.Neelakanda Pillai. It is

also contended that the plaintiffs' father obtained some property

from the Land Tribunal and thereby his right over the Kaduvinal

family has been extinguished and he is estopped from claiming

to be a senior member of Kaduvinal family. The plaintiffs

claiming through him is also having no right over the temple R.S.A.No.711/2020

properties. The temple was found to be private property as per

the judgment in A.S.No.35/1959 of this Court. Temple and its

properties are being managed properly by the second defendant

and he has not committed any misappropriation. So there is no

necessity to appoint a Receiver for the administration, pending

the suit and hence according to him there is no cause of action

for filing the suit. Pending the suit, second defendant died and

his legal heirs have been impleaded as defendants 4 to 7.

Additional defendant No.6 filed written statement endorsing the

contentions in the written statement of the second defendant.

4. Exts.A1 to A13 marked and PW1 examined from the

side of the plaintiffs. Exts.B1 and B2 marked and DW1 examined

from the side of the defendants. Exts.C1 and C1(a) were also

marked.

5. The learned Munsiff on evaluating the facts and

circumstances and evidence adduced from both sides found that

the first defendant is a family temple belonging to the plaintiffs'

family and the temple is governed by the stipulations in Ext.A1

Partition Deed and the Will alleged to have been executed in

favour of the second defendant is of no value in the eye of law

and accordingly the first plaintiff was found to be entitled to R.S.A.No.711/2020

have the charge of administration with respect to Sree Naduvila

Bhagavathi Devaswom Temple and her right to carry out the

administration of the temple and its properties are declared and

6th defendant is directed to handover the charge of the

administration of the temple along with its assets to the first

plaintiff.

6. Aggrieved by the judgment and decree passed by the

learned Munsiff, first defendant represented by 4th defendant

and additional defendants 4 to 7 filed appeal before the

Subordinate Judge's Court, Chengannur and the learned Sub

Judge on a r-appreciation of the facts and evidence adduced

confirmed the judgment and decree passed by the trial court.

Having lost before the two forums, appellants approaches this

Court in this Regular Second Appeal. (The parties would

hereinafter be referred as per their status before the trial court).

7. This Court, at the time of admission, formulated the

following substantial questions of law:

1) Are the courts below right in decreeing the suit and declaring that the 1st plaintiff being the eldest member of "Kaduvinal" family, without considering the impact of Kerala Joint Family System (Abolition) Act, 1975, which abolished joint family system thereby impliedly repealed R.S.A.No.711/2020

the clause in Exhibit-A1 empowering the senior most family member to administer the disputed temple?

            2)      Are   the   courts   below   right   in   allowing
                    declaration, which is time barred as per the
                    Limitation Act?

8. The only argument advanced by the learned counsel is

with regard to the change of law due to the advent of the Kerala

Joint Hindu Family System (Abolition) Act, 1975, (for short, the

Act), which, according to him, would take away the rights of

eldest member as provided in Ext.A1 Partition Deed for

administration of the temple and all the members will have the

right over the property as tenants in common and hence the

proper course of the plaintiffs is to file a suit for framing a

scheme, which, though originally sought for in the plaint,

subsequently was deleted. In short, according to him, due to the

commencement of the Act, the stipulation in the Partition Deed

to administer the property by the temple and the properties by

the senior member of the family will no longer exists.

9. The learned counsel for the respondents/plaintiffs on

the other hand would vehemently contend that, the stipulation in

Ext.A1 partition deed, by which, senior member of the family has

been authorized to administer the temple and its properties, R.S.A.No.711/2020

itself would constitute a family trust and hence there is no

further requirement to frame a scheme with respect to the

administration of the Trust and that is why though originally a

prayer for framing a scheme was also incorporated in the plaint,

subsequently, by amendment, that prayer was deleted. He would

also contend that tharawad setting apart certain properties for a

temple and for its administration itself would create a valid trust.

10. Before going to the rival contentions of the parties, it

would be apposite to understand the stipulations in Ext.A1

Partition Deed. As per the stipulation in Ext.A1-partition deed, it

has been specifically provided in page No.2 that the

administration of the family temple, Naluvila Bhagavathy

Devaswom Trust is being administered by the first party in the

partition deed - Neelakanda Pillai and during his lifetime he has

to continue the administration and thereafter the senior member

of the family should conduct the administration of the temple

and hence the temple property is not included in the partition

deed. To make the matters more clear, I would extract the above

stipulation in vernacular which reads thus :

ÈN{áæ¿ µá¿á¢Ì¢Õµ ÈÞÜáÕß{ Í·ÕÄß çÆÕØb¢ Íøâ ÎâMáÎáùÏᢠµàÝíÉÄßÕᢠ¥ÈáØøߺîᢠ൧ Þ¢ çÉøáµÞøX çfεøÎÞÏß È¿JßÕøáKÄᢠ¿ßÏÞæa ¼àÕßĵÞÜ¢Õæø R.S.A.No.711/2020

¿ßÏÞX ÄæK Íøâ È¿JßæAÞçUIÄᢠ¥ÄßÈáçÖ×¢ ¥ÄÄáµÞÜ¢ ÎâMíÎáù ØßÆíÇßAáK ¦Z Íøâ È¿JßæAÞçUIÄᢠ¿ß çÆÕØb¢ Õµ ØbJáAZ §ÄßW çºVJßGßÜïÞJÄᢠ¦µáKá.

So I will first deal with the contention of the learned counsel for

the appellants that after the advent of the Act whether the

stipulation in Ext.A1 Partition Deed will extinct or not. Before

that, it would be necessary to enter into a finding as to whether

the stipulation in Ext.A1 Partition Deed by itself will constitute a

family trust, as contended by the learned counsel for the

respondents/plaintiffs.

11. The learned counsel for the plaintiffs placed reliance

on Narayana Pillai and Anr. v. Kesava Pillai and Ors. [1962 KLJ

389 : 1962 KHC 288], wherein, His Lordship the Hon'ble

Mr. M. Madhavan Nair J., as he then was, dealt with the

characteristics of the Hindu Religious Trust and it has been held

that a tarvad sets apart certain properties for the performance of

certain religious services and dedicates all the future income for

the religious purposes and when right of management of the

property be retained with tarvad, a valid trust is created though

the right of the management of the property is retained with the

tarvad. That was a case in which a trust is created as per the R.S.A.No.711/2020

provisions in Ext.A in that case and the plaintiffs and defendants

are members of a Nair tarwad and there was a partition deed in

the tarwad as Ext.A and some properties were left in common for

religious and charitable purposes to be managed by the first

defendant and when the first defendant mismanaged the

property by creating a Gift Deed in favour of the second

defendant his nephew and son-in-law and thereupon the plaintiff

approached the court seeking to set aside the gift deed executed

by the trustee, the first defendant, in favour of the second

defendant with respect to the trust properties and as well as for

removal of first defendant from trusteeship. So the question

decided in that case is very much identical to the fact situation

of this case and when there is a specific stipulation in the

Partition Deed by setting apart certain item of properties for

religious purposes and the ownership of the property is still

vested with the tarwad that itself would create a trust and it was

also held that it is not necessary that the founder of religious

trust should transfer the property to someone else in the trust. It

is also categorically held in paragraph No.5 that if a tarwad sets

apart certain properties for the performance of certain religious

services and dedicate all the future income thereof for such R.S.A.No.711/2020

purposes a valid trust is created thereby, even though the right

of management of the property is retained with the tarwad itself.

It is also held that the object of the trust enumerated in Ext.A as

the worship of family deity on the Uthradom day in the month of

Chingam, feeding pilgrims to Sabarimala, the conduct of five

monthly ceremonies in the family chapel, Shanthi, Bhagavathi

Seva, Easwara Seva, Ganapathi Homam etc., etc. and properties

set apart for purposes of the aforesaid objects are also specified

and the entire income thereof is directed to be utilized for those

purposes without reservation of any beneficial interest in any

member of the tarwad. In the circumstances, it was held that,

the essential requirements of the creation of a religious and

charitable trust are complied with in the provisions in Ext.A and

it was found that Ext.A has therefore created a trust for the

religious and charitable objects enumerated therein in regard to

the properties specified as specified as item 1 in the schedule

appended to the document. In Narayanan Pandarathil E.K. v. P.K.

Vasudevan Pillai and Ors. [2014 (3) KLT 497 : 2014 (3) KLJ 758 :

ILR 2014 (4) Ker. 675] also an issue in connection with Hindu

religious endowment arouse. A temple Pannivizha Peedikayil

Bhagavathi Temple belongs to Edamnana Illom and the illom was R.S.A.No.711/2020

holding extensive properties and was running various temples in

their properties and Pannivizha Peedikayil Bhagavathi Temple

was one among such temples run and administered by the

members of the said illom. Public were also permitted to worship

the deity and to make offerings. The then Urallen of the temple

entered into a settlement with a Society through a registered

agreement whereby the duty to administer the temple was

entrusted with the Society and the society started administering

the temple and some of its properties. A contention was raised

that through the agreement temple and its properties acquired a

status of public charitable trust and some persons filed a suit for

a scheme within the meaning of Section 92 of the Code of Civil

Procedure, 1908 and the members of illom contended that the

agreement in favour of the Society was void ab initio and it could

not have transferred the right of 'uraima' of the members of the

Illom in favour of the Society. In the said circumstances it was

held by the learned Single Judge that Urallen who is merely a

trustee cannot transform a private trust into a public trust in

derogation of the rights of all other members of the Illom and

there is no absolute dedication of the proprieties by the owners

and it is also held that mere fact that worshipers were not R.S.A.No.711/2020

obstructed from worshiping and making offerings will not

convert a private temple into public trust and accordingly the

agreement executed in favour of the Society was held to be void

and the Pannivizha temple was held to have never acquired the

status of a public charitable trust.

12. The members of the Kaduvinal family while executing

Ext.A1 partition deed created a Trust and administration of the

Trust was also stipulated to be carried out by the then member

who was administering the temple and the properties and

thereafter specifically stipulated that the senior member of the

family have to administer the temple and the properties. It is

also specifically stipulated that hence the temple property is not

included in the partition deed. So, the stipulation in Ext.A1, as

rightly contended by the learned counsel for the plaintiffs, would

create a family trust with respect to the first defendant - Trust

and hence there is no necessity to further frame a scheme with

respect to the administration of family temple and hence the

prayer for framing the scheme was subsequently deleted by way

of amendment.

13. The learned counsel for the defendants on the other

hand would contend that, by the commencement of the R.S.A.No.711/2020

Act, the stipulation in Ext.A1 will extinct and framing of a

scheme is very much necessary for the administration of the

temple. He would highlight Section 4 of the Act, which reads

thus:

4. Joint tenancy to be replaced by tenancy in common.-

(1) All members of an undivided Hindu Family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall, with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, of the members of an undevided Hindu family, other than persons who have become entitled to hold their shares separately, and any such right can be enforced as if this Act had not been passed

(2) All members of a Joint Hindu Family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-

common, as if a partition of such property per capita had taken place among all the members of the family R.S.A.No.711/2020

living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner there of.

But the specific contention of the learned counsel for the

plaintiffs is that the partition has been effected in the family

way-back in 1951 and there is no joint family in existence as on

the date of commencement of Act in Kaduvinal family and only

the temple has been kept in common without partition with the

specific stipulation with regard to its administration.

14. Learned counsel for the defendants placed reliance on

Kt. N. Rm. Thenappa Chettiar & Ors v. N. S. Kr. Karuppan Chettiar

& Ors [AIR 1968 SC 915]. In that decision, while dealing with

Hindu religious and charitable endowments it was held that even

in case of private trust a suit can be filed for the removal of

trustee or settlement of a scheme for the purpose of effectively

carrying out the objects of the trust, if there is breach of trust or

mismanagement on the part of the trustee, a suit can be brought

in a civil court by any person interested for the removal of the

trustee and for the proper administrations of the endowment.

15. Ramchand (Dead) By Legal Representatives v Thakur

Janki Ballabhji Maharaj & Anr. [1969 (2) SCC 313] it has been R.S.A.No.711/2020

held that in case of private trust suit is maintainable before the

civil court to frame scheme for management of temple.

Vijayakumaran v. Sankarankutty Ezhuthassan [2001 (2) KLT 335]

is the another decision relied on the learned counsel, wherein, it

has been held, while dealing with Section 5(2) of the Act, that a

suit for partition filed and decreed after commencement of the

Act without impleading all the members of the coparcenary

parties and the decree passed and sale effected are not binding

on the other coparceners who are not parties to the suit and

separate suit filed by them for partition is held to be maintained.

This decision actually has no application to the case in hand.

16. Dharmambal v. Lakshmi Ammal [2002 (2) KLT 843] it

has been held that Section 4 sub-section (2) of the Act excludes

undivided Hindu family referred to in sub-section (1) and even

though it is stated that all the members of an undivided joint

Hindu family holding a joint property on the day of coming into

force of the Act shall hold it as tenants in common as if the

partition has taken place among the members of the family living

on that date aforesaid, it is not stated that their shares will be on

per captia basis. Sub-section (2) is not applicable to undivided

Hindu family. It is also held that a reference to the statement of R.S.A.No.711/2020

objects and reasons attached to the bill of the Kerala Joint Hindu

Family System (Abolition) Act also show that the Legislature

never intended to include under sub-section (2) of Section 4 an

undivided Hindu family governed by Mitakshara law. Thereafter

the property has to be partitioned ignoring sub-section (2) of

Section 4.

17. The above two decisions relied on by the learned

counsel will not have any application to the present case since

there is no joint family in Kaduvinal family since the property has

already been partitioned in the year 1951 and only the temple

property has been left without partition by creating a family

trust empowering the senior most member of the family to

administer the temple and the property. So either the

commencement of the Act or Section 4 of the said Act will not

have any impact in the family trust created by the members of

family as per Ext.A1. So the contention so advanced by the

learned counsel for the appellants/defendants 1, 4, 6 & 7 is not

at all sustainable in law.

18. It has been concurrently found by the courts below

that first plaintiff, now being the senior most member of the

family, is entitled for the administration of the temple as per R.S.A.No.711/2020

stipulations in Ext.A1 partition deed. There is also a reference in

the judgment with regard to Ext.A2 judgment in A.S.No.35/1959

of this Court which arose out of the judgment and decree in

O.S.No.22/1958 on the file of Additional Sub Court, Mavelikkara

and no argument was advanced by the learned counsel in that

aspect. But it is discernible from the judgment passed by the

courts below that in Ext.A2 judgment a co-ownership right of

Srattil family along with plaintiff's family though referred, it was

left open for final decision in appropriate proceedings. In Ext.A1

partition deed also there is reference with regard to that case.

Moreover, the suit in this case has been filed in a representative

capacity. So as has been rightly found by the courts below

nobody has come forward claiming any right or interest over the

temple either from Srattil family or anybody else.

19. Defendants has also raised a plea of bar under the law

of limitation for a prayer for declaration sought for by the

plaintiff. The contention of the contesting defendants is that after

the death of the father of plaintiff 3 years have elapsed and

hence the suit for declaration to declare her as the administrator

of the temple is barred by limitation. But, as rightly found by the R.S.A.No.711/2020

courts below, the temple is a family Trust and the senior member

is stipulated to act as the administrator and the temple has also

been set apart for the benefit of the entire family. Section 10 of

the Limitation Act, 1963 provides that notwithstanding anything

contained in the foregoing provisions of this Act, no suit against

a person in whom property has become vested in trust for any

specific purpose, or against his legal representatives or assigns

(not being assigns for valuable consideration), for the purpose of

following in his or their hands such property, or the proceeds

thereof, or for an account of such property or proceeds, shall be

barred by any length of time. Explanation to Section 10 further

provides that any property compromised in a Hindu, Muslim or

Budhist religious or charitable endowment shall be deemed to

property vested in trust for a specific purpose and the manger of

the property shall be deemed to be the trustee thereof.

20. The present suit has been filed by the plaintiffs for

declaration that the plaint schedule properties as the assets of

the trust and to entrust the administration of the temple to the

first plaintiff being the senior most member of the family and

also for rendition of accounts. So, as found earlier, as per Ext.A1,

a family Trust has been created with respect to Naluvila R.S.A.No.711/2020

Bhagavathy Temple and its administration. So Section 10 of the

Limitation Act squarely applies and there will not be any

limitation for any of the reliefs sought for by the plaintiffs.

In the result, appeal is found to be devoid of any merit

and hence dismissed.

Sd/-

                                             M.R.ANITHA

Shg/3.9                                         JUDGE