Kerala High Court
N.Saraswathy vs M.Devi on 7 November, 2024
RSA No. 776 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
RSA NO. 776 OF 2019
AGAINST THE COMPOSITE DECREE AND COMMON JUDGMENT DATED 26.03.2019
IN AS NO.9 OF 2018 AND CROSS APPEAL ON THE FILE OF ADDITIONAL DISTRICT
COURT KOZHIKODE-III ARISING OUT OF THE DECREE AND JUDGMENT DATED 28.11.2017
IN OS NO.132 OF 2014 ON THE FILE OF PRINCIPAL MUNSIFF COURT KOZHIKODE-I
APPELLANTS/APPELLANTS 2 AND 1/DEFENDANTS 2 AND 1:
1 N.SARASWATHY,
AGED 50 YEARS
D/O. N.VELAYUDHAN, EDOLIKANDY PARAMB,NEAR MUTHAPPANKAVU,
BALAN K.NAIR ROAD, ERANHIPALAM POST, KOZHIKODE TALUK AND
DISTRICT,PIN-673 006
2 THE DEITY,
KOYILOTH MADAPPURA MUTHANPPANKAVU, REPRESENTED BY MADAYAN
SURESH CHANDRAN,AGED 45 YEARS, BALAN K.NAIR ROAD,
ERANHIPALAM POST, KOZHIKODE,PIN-673 006
BY ADVS.
T.KRISHNANUNNI (SR.)
SRI.VINOD RAVINDRANATH
SMT.MEENA.A.
SRI.T.SIVADASAN
SMT.M.R.MINI
SRI.ASHWIN SATHYANATH
SRI.ROHIT NANDAKUMAR
SHRI.ANISH ANTONY ANATHAZHATH
RSA No. 776 of 2019
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RESPONDENTS/RESPONDENTS AND APPELLANTS 3 TO 6/PLAINTIFFS AND DEFENDANTS 7
AND 3 TO 6:
1 M.DEVI
AGED 79 YEARS
W/O. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
2 M.MOHANADASAN,
AGED 62 YEARS
S/O.M. SANKARAN,HOUSE NO.5/1737 B, CHEENATHUMKANDY PARAMBU,
BALAN K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
3 M.VALSARAJ,
AGED 58 YEARS
S/O.M. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
4 M.PREMKUMAR,
AGED 56 YEARS
S/O.M. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
5 M.RANI,
AGED 54 YEARS
D/O.M. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
6 M.SREEKUMAR,
AGED 52 YEARS
S/O.M. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
7 M.BALAJI,
AGED 50 YEARS
S/O.M. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
8 M.RAVICHANDRAN,
AGED 60 YEARS
S/O.M. SANKARAN, SREEVALSAM, CHEENATHUMKANDY PARAMBU, BALAN
K.NAIR ROAD, ERANHIPALAM, KOZHIKODE ,PIN-673 006
9 N.RAMACHANDRAN,
AGED 49 YEARS
RSA No. 776 of 2019
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S/O. N.VELAYUDHAN, THAZHATHUMPPOYIL, NEAR MUTHAPPANKAVU,
BALAN K.NAIR, ERANHIPALAM POST, KOZHIKODE,PIN-673 006
10 N.SREEJA,
AGED 47 YEARS
D/O. N.VELAYUDHAN, THAZHATHUMPPOYIL, NEAR MUTHAPPANKAVU,
BALAN K.NAIR, ERANHIPALAM POST, KOZHIKODE,PIN-673 006
11 N.BINDU,
AGED 46 YEARS
D/O. N.VELAYUDHAN, THAZHATHUMPPOYIL, NEAR MUTHAPPANKAVU,
BALAN K.NAIR, ERANHIPALAM POST, KOZHIKODE,PIN-673 006
12 N.SURESH CHANDRAN,
AGED 45 YEARS
S/O. N.VELAYUDHAN, THAZHATHUMPPOYIL, NEAR MUTHAPPANKAVU,
BALAN K.NAIR, ERANHIPALAM POST, KOZHIKODE,PIN-673 006
R1 TO R7 BY ADVS. SRI.S.SREEKUMAR (SR.)
SRI S.K.SAJU
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. This Regular Second Appeal is filed by the defendants 2 and 1 in
the suit. The suit was for framing a scheme for the administration
of a Temple situated in the plaint schedule property, measuring 14
Koles X 14 Koles in Six Feet Koles (Approximately 16 cents) and
its properties.
1. The case of the plaintiffs is that the plaint schedule property
originally belonged to Neelambalath Chiruthakutty and
Neelambalath Perachakutty, who purchased the same with their
own funds as per Ext.A1 Kanam Deed of the year 1909. They
constructed a shed and a well in the plaint schedule property. They
were ardent devotees of God. They constructed a basement for
God Muthappan and arranged a Pooja room in the plaint schedule
property. It was later developed into a Temple by the construction
of a Madappura, and they named the said Temple 'Koyiloth
Madappura Muthappankavu.' The person performing Pooja in the
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Madappura is known as Madayan. Chiruthakutty and Perachakutty
dedicated the plaint schedule property to the Temple. There are
several sub deities also in the Temple. Chiruthakutty and
Perachakutty were married to two brothers by name, Andy and
Raman. Out of the wedlock of Chiruthakkutty and Andy, a daughter
by the name of Kuttooli was born. A son by name Sankaran was
born to Kuttooli. Plaintiffs and defendant No.7 are the children of
the said Sankaran. In the wedlock of Perachakutty and Raman, a
daughter by the name of Ammukkutty was born. Ammukkutty and
her husband died issueless. After the death of Perachakutty,
Raman married one Kali, and out of the said wedlock, a son by the
name of Velayudhan was born. The defendants 2 to 6 are the
children of Velayudhan. The 1st defendant is the Deity of the
Temple, which is represented by the 6th defendant. The 6th
defendant is the Madayan of the Temple. The 7th defendant was
the Oracle of the Temple. He was Assistant Madayan and
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Madayan for some time. The Temple is a Private Trust of the
plaintiffs and the defendants 2 to 7. In earlier days, the
administration of the temple was being conducted by plaintiffs and
defendants 2 to 7. The Temple is not under the Hindu Religious
and Endowment Board. For the last several years, the 7th
defendant has been managing the plaint schedule property,
including the temple, without informing other members. He is not
properly managing the property. He has not been keeping any
account for the income to the Temple. He is doing all activities
under the instructions of the defendants 2 to 6. The 7th defendant
and others cut and removed valuable trees from the plaint
schedule property. Plaintiffs 2 to 7 filed O.S.No. 603/1995 before
the Sub Court for partition of the plaint schedule property and also
for an injunction against the defendants 2 to 6. The defendants 2
to 6 claimed that the plaint schedule property belonged to them as
the plaint schedule property was purchased with the funds of their
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predecessor Raman, and the temple was constructed by the said
Raman out of his own funds. The Sub Court found that the plaintiffs
also have the right and interest in the property but dismissed the
suit, holding that the Temple is not partible, and the plaintiff can
take steps for framing scheme. The appeal filed against the
judgment in O.S.No.603/1995 was also dismissed. But the
observation in the judgment in O.S.No.603/1995 that the plaintiffs
have to take steps for framing the scheme was deleted. The 6th
defendant, who is the Madayan, has not been discharging his duty
properly. The plaintiffs have also got the right to become Madayan.
There are valuables in the Temple for the purpose of doing Pooja
in the Temple. The defendants 6 and 7 are taking steps to alter and
modify the temple and the Kazhakappura. They have absolutely
no right to do the same. If there is no proper management, the
Temple will deteriorate; hence, a scheme for administration and
also for the appointment of Madayan for the Temple is necessary.
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2. The 7th defendant remained absent, and he was ex-parte.
Defendants 1 to 6 filed a joint Written Statement contending inter
alia that though the property was purchased by Chiruthakutty and
Perachakutty, the expense for purchasing the property was borne
by Raman, who is the husband of Perachakutty. The successors
of Chiruthakutty had never been Madayan in the Temple. The 7th
defendant has never been a Madayan. The defendants 1 to 6 have
no connection with the 7th defendant. In O.S.No. 603/1995 the right
or interest of the plaintiff over the property was not declared.
Without seeking a declaration of the plaintiff's right over the plaint
schedule property, they have no right to get the scheme frame.
3. After considering the pleading and evidence, the Trial Court
decreed the suit passing a Preliminary Decree declaring that the
plaintiffs are entitled to have a scheme settled for the proper
administration of the Temple and its properties, and both parties
are at liberty to apply passing of the final decree by producing draft
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scheme to be framed before the court within two months. The
prayer for injunction and the prayer for appointing a receiver were
not granted. The Trial Court found that the plaint schedule property
is a private trust, that the plaintiffs are the successors in interest of
Chiruthakutty, and that they have got right and interest in the plaint
schedule property; that even though the property was dedicated to
the Temple, the plaintiffs still have got right as trustees of the
property; that there is no uniformity of selection of Madayan in the
Temple; that plaintiffs also have got right to be appointed as
Madayan and they cannot be excluded from being selected to the
post of Madayan; that the income and expenditures are not
properly accounted; that teak tree was cut and removed by the
defendants without the consent of the plaintiffs; that since the
plaintiffs are also entitled to be part of the administration of the
temple, administration cannot be done by the defendants alone
excluding the plaintiffs from administration and therefore
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the scheme is necessary for regulating the administration of the
Temple
4. The defendants 1 to 6 filed A.S.No. 9/2018 before the First
Appellate Court, and the plaintiffs filed Cross Objection in the said
appeal. The First Appellate Court dismissed the Appeal and
allowed the Cross Objection, granting a permanent prohibitory
injunction against the defendants, restricting them from committing
any waste to the plaint schedule property and from removing any
movables from the plaint schedule property.
5. This Regular Second Appeal is filed challenging the judgment and
decree of the Trial Court as modified by the First Appellate Court.
6. I heard the learned Senior counsel for the appellants, Sri.
T.Krishnanunni instructed by Adv. Sri. Vinod Ravindranath and the
learned Senior Counsel for the respondents 1 to 4
Sri.S.Sreekumar instructed by Adv. Sri. S.K.Saju.
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7. The learned Senior Counsel for the appellants argued that the suit
as framed is not maintainable, and hence, the Trial Court, as well
as the First Appellate Court, ought to have dismissed the suit. The
suit for framing a scheme with the involvement of the plaintiffs is
not maintainable without seeking a declaration with respect to the
right of the plaintiffs over the plaint schedule property and the
Temple therein. In the Plaint itself, the plaintiffs have admitted that
Chiruthakutty, who is their predecessor, has dedicated the
property in favour of the Deity of the temple. In such a case, the
property absolutely belonged to the Deity and the plaintiffs could
not claim any right over the property. The plaintiffs, being strangers
to the temple, have no right to seek framing of the scheme by filing
the present suit. The suit filed against the Deity of the temple
seeking to frame a scheme for the administration of the temple is
not maintainable. The suit ought to have been filed by Deity itself
for framing a scheme represented by a next friend.
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8. The learned Senior Counsel for the respondent contended that the
devolution of the plaint schedule property is stated in the plaint to
show the interest of the plaintiffs over the temple situated in the
plaint schedule property. When Ext.A1 proves that the
predecessors of the plaintiffs and the defendants 2 to 7, namely,
Chiruthakutty and Perachakutty, were the joint owners of the plaint
schedule property and the parties admit that they are the
descendants of Chiruthakutty and Perachakutty, no declaration of
the rights of the plaintiffs is necessary. Admittedly, the plaint
schedule property is dedicated by the predecessors of the plaintiffs
and the defendants 2 to 7. Even though defendants 2 to 6 claimed
that the property was purchased by Raman with his own funds,
who is the predecessor of defendants 2 to 6, and that the Temple
was established by Raman, the Trial Court, as well as the First
Appellate Court, concurrently found that it is not correct. The
plaintiffs were compelled to file the suit for framing a Scheme on
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account of the mismanagement in the administration of the temple,
keeping the plaintiffs out of the administration of the temple, and
when the defendants 2 to 6 removed valuables from the plaint
schedule property. The Trial Court, as well as the First Appellate
Court, concurrently found that the temple and its properties were
a private trust. No third party can file a suit for framing the Scheme
of a Private Trust. Anybody interested in the Private Trust can file
a suit for framing a scheme. The Trial Court rightly granted a
decree in favour of the plaintiffs for framing the scheme, and the
First Appellate court rightly granted an injunction in favour of the
plaintiffs and against the defendants.
9. I have considered the rival contentions.
10. The plaint schedule property originally belonged to
Chiruthakutty and Perachakutty as per Ext.A1. A temple is
established in the Plaint Schedule property. Even though
defendants 2 to 6 claimed that the plaint schedule property was
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purchased by Raman in the names Chiruthakutty and
Perachakutty, with his own funds and it is Raman who established
the temple in the Plaint Schedule Property, there is no evidence
for the same, and the Trial Court and the First Appellate Court
concurrently found that the Plaint Schedule Property was
purchased by Chiruthakutty and Perachakutty and they
established the temple in the Plaint Schedule Property.
11. The Trial Court and the First Appellate Court found that there is
mismanagement in the administration of the temple as there are
no proper accounts for the management of the temple and there
is no proper selection process for the Madayan for the temple.
Both the Courts concurrently found the need for framing a Scheme
for the proper administration of the temple. The said findings of the
Trial Court and the First Appellate Court are well founded. There
is no reason to interfere with the said findings.
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12. The first contention of the appellant is that without the declaration
of the rights of the plaintiffs over the plaint schedule property, the
suit for framing a Scheme is not maintainable. A suit for declaration
is necessary only when serious disputes are there with respect to
the right of the plaintiff over the plaint schedule property.
Admittedly, the plaintiffs are the descendants of Chiruthakutty, who
had half right in the Plaint Schedule Property as per Ext.A1. Ext.A1
would prove the half right of Chiruthakutty over the plaint schedule
property. There is no document showing the divesting of title or
parallel title to the plaint schedule property. The defendants 2 to 6
are also claiming rights over the plaint schedule property on the
strength of the very same Ext.A1, which shows that their
predecessor, Perachakutty, had half right in the property.
Admittedly, the temple is established in the Plaint Schedule
Property. Then, the establishment of the temple could only be by
the joint act of the owners of the Plaint Schedule Property. The
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case of defendants 2 to 6 is that the property belonged to Raman,
and Raman established the temple for which there is no evidence.
The natural inference is that the temple is established by both the
co-owners together. The defendants 2 to 6 do not have a case that
the dedication of property is by one of the co-owners. The
establishment of the temple in the property could only be on the
basis of a joint action on the part of Chiruthakutty and
Perachakutty. Such be the situation, the descendants of
Chiruthakutty and Perachakutty have equal rights over the plaint
schedule property. The descendants under one co-owner could
not claim rights better than those of the descendants under the
other co-owner. Hence, defendants 2 to 6, who are the
descendants under Perachakutty, have no right to contend that the
descendants under Chiruthakutty have to seek a declaration for
establishing their rights. The suit is perfectly maintainable even
without prayer for declaration.
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13. The second contention of the appellants is that after the dedication
of the plaint schedule property by Chiruthakutty in favour the Deity,
her descendants have no right over the property. As I have already
found, the descendants under one co-owner could not claim rights
better than those of the descendants under the other co-owner. If
the defendants 2 to 6 have rights of management and
administration over the temple and its properties, equal rights are
available to the plaintiffs and the 7th defendant. The defendants 2
to 6 cannot keep the plaintiffs away from the management and
administration of the temple and its properties. Hence, I find that
the plaintiffs and the 7th defendant have equal rights to participate
in the management and administration of the temple and its
properties along with the defendants 2 to 6. As persons interested
in the affairs of the temple, the plaintiffs have every right to sue
when there is mismanagement in the administration of the temple
for appropriate reliefs. They are not remedy-less when
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mismanagement and maladministration are going on in the affairs
of the temple. The subject temple being a Private Trust, no
stranger can maintain an action in the case of mismanagement
and mal-administration, as a stranger could not be a person
interested in the affairs of a private trust. When a private trust is
there, the persons who have formed the trust and the successors
of the said persons are persons interested to see that the trust is
administered properly. Hence, the second contention raised by the
appellants is also unsustainable.
14. The third contention of the appellants is that the suit should have
been filed by the Deity represented by a next friend for framing a
Scheme for management and administration. It is well settled by
the decision of this Court in Subramoniya Pillai Chellam Pillai v.
Subramoniya Pillai Chathan Pillai 1953 KLT 117 and the
Hon'ble Supreme Court Remachand v. Thakkur Janki Vallabhji
Maharaj AIR 1970 SC 532 that in the case of a family private trust,
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the Court has got jurisdiction to frame a scheme for the
management of the Trust. In the Ext.A3 judgment of this Court
arising from O.S.No.603/1995, this Court specifically found that
there could be a scheme for even a private trust. Hence, the
plaintiffs have every right to seek framing of the scheme and to be
a part of the body administering the temple. There is no legal
impediment for the plaintiffs to file the suit as persons interested in
the affairs of the Trust. Merely because the suit is not instituted in
the name of the deity, no prejudice whatsoever is caused to the
defendants. Deity is made a party in the suit represented by the
present Madayan who is the 6th defendant.
15. The Trial Court, as well as the First Appellate Court, granted
a decree in favour of the plaintiffs to frame a scheme and
temporary injunction, finding that there was no proper
administration of the temple and its properties and that the
plaintiffs are having the interest to see that the administration of
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the temple and its properties are done properly. I do not find any
error or illegality in the judgment and decree of the Trial Court
which is modified by the First Appellate Court. No substantial
question of law arises in the matter. Accordingly, this Regular
Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
