[Cites 11, Cited by 0]
Kerala High Court
Subramaniyan Namboothiripadu vs Kaninadu Sree Bhagavathy on 17 February, 2026
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 1 2026:KER:14865
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 17TH DAY OF FEBRUARY 2026 / 28TH MAGHA, 1947
RSA NO. 1277 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED IN AS NO.23 OF 2011 OF
SUB COURT, PERUMBAVOOR ARISING OUT OF THE JUDGMENT AND DECREE DATED
IN OS NO.25 OF 2009 OF MUNSIFF COURT, PERUMBAVOOR
APPELLANTS/RESPONDENT 1 AND 2/DEFENDANT 1 AND 2:
1 SREE BHAGAVATHY VILASAM,
N.S.S KARAYOGAM, REGISTRATION NO.1688,
KANINADU KARA, PUTHENCRUZ VILLAGE,
REPRESENTED BY ITS PRESENT PRESIDENT,
BALAKRISHNAN, AGED 57, S/O.KRISHNAN NAIR,
CHATHANATT HOUSE, KANINADU KARA,
PUTHENCRUZ VILLAGE, PIN - 682 310.
2 SREE BHAGAVATHY VILASAM
N.S.S KARAYOGAM,, REGISTRATION NO.1688,
KANINADU KARA, PUTHENCRUZ VILLAGE,
REPRESENTED BY ITS SECRETARY,
C.N.SURENDRAN, AGED 43 YEARS
S/O.NARAYANAN NAIR, CHILLARAKKAL,
KANINADU KARA, PUTHENCRUZ VILLAGE,
PIN - 682 310.
BY ADVS.
SRI.P.VISWANATHAN (SR.)
SRI.AJITH VISWANATHAN
RESPONDENTS/APPELLANTS AND 3RD RESPONDENT/PLAINTIFFS AND 3RD
DEFENDANT :
1 KANINADU SREE BHAGAVATHY
KANINADU KARA, PUTHENCRUZ VILLAGE,
PIN - 682 310.
2 KANINADU SREE BHAGAVATHY
KANINADU KARA, PUTHENCRUZ VILLAGE,
REPRESENTED BY BHAGAVATHY TEMPLE ADMINISTRATION
COMMITTEE PRESIDENT, P.T.PRASAD, AGED 26 YEARS
COOLIE, S/O.THEVAN, PARUTHAYIL ILLAM,
KANINADU KARA, PUTHENCRUZ VILLAGE,
PIN - 682 310.
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 2 2026:KER:14865
3 KANINADU SREE BHAGAVATHY
KANINADU KARA, PUTHENCRUZ VILLAGE,
REPRESENTED BY BHAGAVATHY TEMPLE ADMINISTRATION
COMMITTEE SECRETARY, K.K.MOHANAN, AGED ABOUT 39 YEARS
S/O.KUNJAPPAN, KOTTOTTIL, KANINADU KARA,
PUTHENCRUZ VILLAGE, PIN - 682 310.
4 SUBRAMANIYAN NAMBOODIRIPAD,
S/O.SANKARA NARAYANAN NAMBOODIRIPAD,
KOMANA MANA, TRIPPADAPURAM P.O.,
KARYAVATTOM DESOM, THIRUVANANTHAPURAM CITY,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,
VASUDEVAN NAMBOODIRIPAD,AGED 52 YEARS
S/O.SANKARA NARAYANAN NAMBOODIRIPAD, KOMANA MANA,
PUTTUMANOOR KARA, PUTHENCRUZ, PIN - 682 310.
(DIED LRS IMPLEADED)
ADDL.R5 KRISHNAN NAMBOODIRIPAD,
AGED 80, S/O SANKARANARAYANKRISHNAN,
KOMANA MANA, PUTTUMANOOR KARA,
PURHENCRUZ VILLAGE,
REPRESENTED BY POWER OF ATTORNEY HOLDER
VASUDEVAN NAMBOODIRIPAD, AGED 70,
S/O SANKARANARAYANAN NAMBOOTHIRIPAAD,
KOMANA MANA, PUTTUMANNOOR KARA,
PUTHENCRUZE VILLAGE, KUNNATHUNADU TALUK
THE LEGAL REPRESENTATIVES OF DECEASED R4 IS IMPLEADED AS
ADDITIONAL REPRESENT NO.5 AS PER THE ORDER DATED
24.10.2025 IN I.A. NO.2/2025.
BY ADVS.SRI.DINESH R.SHENOY
SRI.M.NARENDRA KUMAR
SMT.HARSHADEV M.
SMT.DRISYA SURENDRAN
SMT.N.M.SHEENA DAS
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
17.02.2026, ALONG WITH CROSS OBJECTION NO.46 OF 2014 AND R.S.A.
NO.1280 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 3 2026:KER:14865
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 17TH DAY OF FEBRUARY 2026 / 28TH MAGHA, 1947
CO NO. 46 OF 2014
AGAINST THE JUDGMENT AND DECREE DATED 24.7.2012 IN A.S. NO.23
OF 211 OF SUB COURT, PERUMBAVOOR
CROSS APPELLANTS/RESPONDENTS 1 TO 3 :
1 KANINADU SREE BHAGAVATHY
KANINADU KARA,PUTHENCRUZ VILLAGE
2 KANINAD SREE BHAGAVATHY
KANINAD KARA, PUTHENCRUZ VILLAGE,
REP. BY BHAGAVATHY TEMPLE
ADMINISTRATION COMMITTEE PRESIDENT
P.T PRASAD,S/O.THEVAN, PARUTHAYIL HOUSE,
KANINAD KARA, PUTHENCRUZ VILLAGE
3 KANINAD SREBHAGAVATHY
KANINAD KARA, PUTHENCRUZ VILLAGE,
REP.BY BHAGAVATHY TEMPLE
ADMINISTRATION COMMITTEE SECRETARY,
K.K.MOHANAN, S/O KUNJAPPAN, KOTTOTTIL KANINAD KARA,
PUTHENCRUZ VILLAGE
BY ADVS.
SRI.DINESH R.SHENOY
SMT.DRISYA SURENDRAN
SMT.N.M.SHEENA DAS
RESPONDENTS/APPELLANTS & 4TH RESPONDENT :
1 SREE BHAGAVATHY VILASAM NSS KARAYOGAM
REGISTRATION NO.1688
KANINAD KARA, PUTHENCRUZ VILLAGE,
REP BY PRSIDENT K.R BHASKARAN NAIR,
S/O.KUNCHU NAIR, PARUTHAYIL HOUSE,
KANIYATH PUTHANPURAYIL KANINAD KARA,
PUTHENCRUZ VILLAGE, PIN 682 308
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 4 2026:KER:14865
2 SREE BHAGABVATHY VILASAM NSS KARAYOGAM
REGISTRATION NO.1688
KANINAD KARA, PUTHENCRUZ VILLAGE,
REP BYITS SECRETARY, C.N SURENDRAN,
S/O.NARAYANAN NAIR, CHILLIRIKKAL,
KANINADKARA, PUTHENCRUZ VILLAGE,
PIN 682 308
3 SUBRAHMANYAN NAMBOOTHIRIPADU, (DIED)
S/O.SANKARANARAYANAN NAMBOODIRIPADU,
KOMANA MANA,THRIPPADAPURAM P.O,
KARYAVATTOK DESOM,THIRUVANANTHAPURAM CITY,
REP BY HIS POWER OF ATTORNEY HOLDER
VASUDEVAN NAMBOOTHIRIPPADU,
S/O.SANKARANARAYANANNAMBOOTHIRIPPAD,
KOMAN MANA, PUTTUMANOOR KARA,
PUTHENCRUZ VILLAGE, PIN 682 308
ADDL.R4 KRISHNAN NAMBOOTHIRIPAD
S/O. SANKARA NARAYANAN NAMBOOTHIRIPADU,
KOMANA MANAKKAL, TRIPPADAPURAM P.O.,
KARIYAVATTOM DESOM, THIRUVANANTHAPURAM,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER
VASUDEVAN NAMBOOTHIRIPADU, S/O. SANKARA NARAYANAN
NAMBOOTHIRIPADU, KOMANA MANA,
PUTTUMANOOR KARA, PUTHENCRUZ,
ERNAKULAM DISTRICT-682308.
ADDITIONAL RESPONDENT NO.4 IS IMPLEADED AS PER THE ORDER
DATED 12.11.2025 IN IA 1/25 IN CO 46/14.
BY ADVS.
SRI.P.VISWANATHAN (SR.)
SHRI.P.GOPAL
SRI.M.NARENDRA KUMAR
SMT.HARSHADEV M.
SRI.AJITH VISWANATHAN
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION
ON 17.02.2026, ALONG WITH RSA NO.1277/2012 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 5 2026:KER:14865
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
TUESDAY, THE 17TH DAY OF FEBRUARY 2026 / 28TH MAGHA, 1947
RSA NO. 1280 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 24.07.2012 IN AS NO.23 OF
2011 OF SUB COURT, PERUMBAVOOR ARISING OUT OF THE JUDGMENT AND DECREE
DATED 14.01.2011 IN OS NO.25 OF 2009 OF MUNSIFF COURT, PERUMBAVOOR
APPELLANT(3RD RESPONDNET/3RD DEFENDANT):
1 SUBRAMANIYAN NAMBOOTHIRIPADU,
S/O.SANKARA NARAYANAN NAMBOOTHIRIPADU,
KOMANA MANA, THRIPPADAPURAM P.O.,
KARYAVATTOM DESOM, THIRUVANANTHAPURAM DISTRICT,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER
VASUDEVAN NAMBOOTHIRIPAD,
S/O.SANKARANARAYANAN NAMBOOTHIRIPADU,
KOMANA MANA, PUTTUMANOOR KARA,
PUTHENCRUZ. (DIED & LRS IMPLEADED)
ADDL. A2 KRISHNAN NAMBOOTHIRIPAD,
S/O. SANKARA NARAYANAN NAMBOOTHIRIPADU,
KOMANA MANAKKAL, TRIPPADAPURAM.P.O.,
KARYAVATTAM DESOM, THIRUVANANTHAPURAM,
REP. BY HIS POWER OF ATTORNEY HOLDER
VASUDEVAN NAMBOTHIRIPADU,
S/O. SANKARANARAYANAN NAMBOOTHIRIPAD,
KOMANA MANA, PUTTUMANOOR KARA,
PUTHENCRUZ, ERNAKULAM DISTRICT.
THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1 IS
IMPLEADED AS ADDITIONAL APPELLANT NO.2 AS PER THE ORDER
DATED 24.10.2025 IN I.A. NO.1/2025.
BY ADVS.
SRI.P.G.PARAMESWARA PANICKER (SR.)
SRI.M.NARENDRA KUMAR
SMT.HARSHADEV M.
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 6 2026:KER:14865
RESPONDENTS(APPELLANTS AND RESPODENTS 1 AND 2/
PLAINTIFFS AND DEFENDANTS 1 AND 2):
1 KANINADU SREE BHAGAVATHY,
KANINADU KARA, PUTHENCRUZ VILLAGE,
ERNAKULAM DISTRICT, PIN - 682 302.
2 KANINADU SREE BHAGAVATHY, KANINAD KARA,
PUTHENCRUZ VILLAGE, REPRESENTED BY BHAGAVATHY TEMPLE
ADMINISTRATION COMMITTEE, PRESIDENT P.T.PRASAD,
S/O.THEVAN, PARUTHAYIL HOUSE, KANINADU KARA,
PUTHENCRUZ VILLAGE, ERNAKULAM DISTRICT,
PIN - 682 302.
3 KANINADU SREE BHAGAVATHY, KANINAD KARA,
PUTHENCRUZ VILLAGE
REPRESENTED BY BHAGAVATHY TEMPLE ADMINISTRATION
COMMITTEE, SECRETARY, K.K.MOHANAN, S/O.KUNJAPPAN,
KOTTOTTIL, KANINADU KARA, PUTHENCRUZ VILLAGE,
ERNAKULAM DISTRICT, PIN - 682 302.
4 SREE BHAGAVATHY VILASAM NSS KARAYOGAM
REGISTRATION NO.1688, KANINAD KARA,
PUTHENCRUZ VILLAGE, REPRESENTED BY PRESIDENT
K.R.BHASKARAN NAIR, S/O.KUNJU NAIR,
PARUTHAYIL HOUSE, KANIYATH PUTHANPURAYIL,
KANINADU KARA, PUTHENCRUZ VILLAGE,
ERNAKULAM DISTRICT, PIN - 682 302.
5 SREE BHAGAVATHY VILASAM NSS KARAYOGAM
REGISTRATION NO.1688, KANINAD KARA,
PUTHENCRUZ VILLAGE, REPRESENTED BY SECRETARY,
C.N.SURENDRAN, S/O.NARAYANAN NAIR,
CHILLIRIKKAL, KANINADU KARA, PUTHENCRUZ VILLAGE,
ERNAKULAM DISTRICT, PIN - 682 302.
BY ADVS. SRI.P.VISWANATHAN (SR.)
SRI.AJITH VISWANATHAN
SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
SRI.R.V.RAHUL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
17.02.2026, ALONG WITH RSA NO.1277/2012 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. NO.1280 OF 2012 7 2026:KER:14865
EASWARAN S., J.
-----------------------------
R.S.A. Nos.1277 of 2012 &
Cross Objection No.46 of 2014
& R.S.A. No. 1280 of 2012
-------------------------------------
Dated this the 17th day of February, 2026
JUDGMENT
The defendants 1 to 3 in O.S. No.25 of 2009, a suit filed for
declaration that a settlement deed executed in favour of defendants 1 and
2 by the 3rd defendant for management of the Sree Kaninadu Bhagavathi
Temple is void and for recovery of possession, have come up in these
appeals, aggrieved by the reversal of the judgment and decree rendered by
the Munsiff Court, Perumbavoor, by the Sub Court, Perumbavoor in A.S.
No.23 of 2011. The plaintiffs, on the other hand, have come up with the
Cross Objection, contending that the first appellate court ought to have
allowed the appeal in full and not in part.
2. The brief facts necessary for the disposal of the appeals and the
cross objection are as follows:
The dispute centers around 18 Ares of land of Kaninadu
Sree Bhagavathi Temple. The deity of the temple is made as the 1st
plaintiff, represented by plaintiffs 2 and 3, who are the office bearers of a
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 8 2026:KER:14865
registered society, by name, Kaninadu Sree Bhagavathi Khesthra Bharana
Samithy, a society registered under the provisions of the Travancore
Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.
The 3rd defendant, through the power of attorney holder, executed a
settlement deed in favour of defendants 1 and 2 by which the right of
management of the temple was given to the 1st defendant. The plaintiffs
impugn the settlement deed on the ground that the 3rd defendant could
not have alienated the property of the temple because the property of the
temple did not belong to Komana Mana, of which the 3rd defendant claims
to be the eldest member, but, on the contrary, to the deity itself. The
plaintiffs further claim that the temple is a public temple and therefore the
management of the temple vests with the worshipers and thus they
formed an association which was registered as a Society under the
provisions of the Travancore Cochin Literary, Scientific and Charitable
Societies Registration Act, 1955. The plaintiffs further allege that the 1st
defendant had trespassed into the property and had taken away the
records, and thus they have thrown out the plaintiffs from the
management of the society and therefore are constrained to institute the
suit for recovery. Additionally, it is pleaded that the 3rd defendant does not
have any right to alienate the properties of the temple, which belongs to
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 9 2026:KER:14865
the deity. In support of their plea, various registers and minute books
pertaining to the selection of the office bearers of the society and two tax
receipts showing the remittance of tax in respect of the plaint schedule
property in the name of the deity were produced. The defendants, on the
other hand, contended that the plaintiffs 2 and 3 are usurpers and do not
have any right over the management of the temple. The management of
the temple was always vested with the Bhramaswom and belonged to the
family of Komana Mana, who in turn had derived the right under Ext.B1
partition deed. The 3rd defendant, being the eldest member of the family,
had transferred the right of management of the temple to the 1st defendant
because the family found it difficult to manage the expenses of the temple.
It is further contended that, going by Ext.A2 settlement deed, the 1st
defendant had no absolute right over the property but only the right of
management, and if it is found that the temple is not being administered
properly, the 3rd defendant retains the right to recall Ext.A2 and thereby
take back the management of the temple. On behalf of the plaintiffs,
Exts.A1 to A12 documents were produced, and PW1 to PW3 were
examined. On behalf of the defendants, Ext.B1 to B7 documents were
produced, and DW1 was examined. The trial court, on appreciation of the
oral and documentary evidence, came to the conclusion that the plaintiffs
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 10 2026:KER:14865
2 and 3 have not proved that they are the office bearers of the registered
society and that they have no right to manage the affairs of the society and
accordingly dismissed the suit. Aggrieved, the plaintiffs preferred A.S.
No.23 of 2011 before the Sub Court, Perumbavoor and, the first appellate
court, on reappreciation of the evidence, came to the conclusion that
though the plaintiffs 2 and 3 have failed to prove that they are the office
bearers of the society, still, the suit can be maintained on the strength that
they are the worshipers of the temple and have got the right vested in
Ext.A11. Further, it was found that the plaint schedule property absolutely
belonged to the temple and, therefore, the 3rd defendant had no right to
alienate the property of the temple. Accordingly, the appeal was allowed,
the suit was decreed in part, Ext.A2 was declared null and void, and the
relief for recovery of possession was declined. Hence, the defendants have
filed separate appeals, whereas the plaintiffs have come up with the Cross
Objection.
3. While admitting R.S.A. No.1277 of 2012 on 6.11.2012, this Court
framed the following substantial questions of law for consideration:
i. Whether the lower appellate court is justified in reversing the
decree passed by the trial court by giving much importance to the
revenue records when there are sufficient materials to arrive at a
conclusion that the temple in dispute and surrounding properties
belong to a Namboothiri Illam and that the plaintiffs have made
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 11 2026:KER:14865
admissions to that effect and also that they have no case that there
is another temple under the same name in the locality?
ii. Whether the lower appellate court is justified in reversing the
trial court decree when Ext.B1, partition deed clearly reveals that
the Kaninadu Bhagavathi Temple and surrounding properties are
the Brahmaswam of the Komana Mana which admittedly is a
Namboothiri Illam?
iii. Whether the lower appellate court is correct in granting a
declaration that Ext A2 is invalid when the Kaninadu Bhagavathi
Temple is being a private temple?
4. While admitting R.S.A. No.1280 of 2012 on 29.10.2012, this
Court framed the following substantial questions of law for consideration:
i. Whether the lower appellate court is justified in not adverting to
the admission in Ext.B2 that the Kaninadu Sree Bhagavathi temple
is a temple belonging to the Komana mana?
ii. Whether the finding that the plaint schedule temple does not
belong to the Komana mana sustainable in the light of the
provisions contained in Ext.B1, partition deed executed in the
Komana mana, which is the only document available to prove the
nature of the temple and which has stood the test of time, there
being no justifiable reason to discard the description of the plaint
schedule temple as Brahmaswom thanathu temple of the illom
(private temple of the illom) in Ext.B1?
iii. Whether the lower appellate court is justified in not adverting to
material provisions contained in Ext. B1 which are conclusive to
hold that the temple in question is private temple of the Komana
mana, namely, the setting apart of the substantial properties of the
illom for the 'nithya nidanam' and 'adiyanthirams' of these temples
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 12 2026:KER:14865
and the founder illom retaining control and management of these
temples to be exercised continuously by the illom and its
descendants from time to time in the manner specified in Ext B1?
iv. Whether the lower appellate court is justified in coming to the
conclusion that the temple in question does not belong to the
Komana mana from the non-mentioning of the survey number of
the site of the temple, namely, 508/5 in Ext.B1, partition deed while
sub divisions of survey No.508 are specifically referred to in
schedules to Ext. B1 allotting properties to different members of the
illom, in the light of the fact that all the temples of the illom, five
thanathu temples and four urainma temples, are referred to in
Ext.B1 only by their names and survey numbers and extent of the
site of none of these temple being given in Ext.B1?
v. Whether Ext.A11, thandaper account and Ext.A12, basic tax
register for the site of the plaint schedule temple, the Kaninadu Sree
Bhagavathi temple being in the name of the said temple is
susceptible of inference that the said temple does not belong to the
Komana mana, the said temple, its site and deity being properties
of the Komana mana?
vi Whether the lower appellate court acted rightly in finding title on
the basis of Exts.A11 and A12 revenue records since it is well settled
that revenue records neither create title nor extinguish title?
vii. Whether the finding that plaintiffs 2 and 3 have locus standi to
file the suit for declaration that alienation of temple property is
invalid as worshipers sustainable, since the suit is filed by plaintiffs
2 and 3 not in their capacity as worshipers and this claim being not
founded on pleading and as such not entertainable and in any view
not available in the case of a private temple?
viii. Whether plaintiffs 2 and 3 competent to represent the 1 st
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 13 2026:KER:14865
plaintiff deity and file the suit on its behalf, the temple and deity
being private properties of the Komana mana?
ix. Has not Ext.A2 been misread and misinterpreted? Can Ext.A2
be characterized as an alienation of temple property and whether a
suit for declaration that it is null and void is maintainable?
x. Is not Ext.A2 valid and within the competence of the 3rd
defendant the temple being a private temple of the Komana mana
and the 3rd defendant being the competent authority to manage the
temple as per the provisions in Ext.B1 and he having authority to
manage through his agent like the Karayogom represented by
defendants 1 and 2?
5. Heard Sri. P. Viswanathan, the learned Senior Counsel, assisted
by Sri. M.Sriram, the learned counsel for the appellants in R.S.A. No.1277
of 2012, Sri. M. Narendra Kumar, the learned counsel for the appellant in
R.S.A. No.1280 of 2012 and Sri. Dinesh R. Shenoy, the learned counsel
appearing for the respondents/Cross Objectors.
6. Sri. P. Viswanathan, the learned Senior Counsel appearing for the
appellants, raised the following submissions:
a. The first appellate court erred egregiously in granting the
declaratory relief sought for in the suit despite finding that 2nd
and 3rd plaintiffs have no right to represent the society, especially
since there is no evidence produced by them to show that they
are the elected office bearers of the society. The moment the
plaintiffs 2 and 3 are held to be not the office bearers of the
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 14 2026:KER:14865
society, necessarily the framework of the suit itself collapses,
especially since the 1st plaintiff is a deity and being considered as
a perpetual minor, no application under Order 32 Rule 1 of the
Code of Civil Procedure has been filed by either of the plaintiffs.
b. The claim for recovery of possession based on the assertion
that the plaintiffs are the office bearers of the society cannot be
accepted. Ext.B7 information received by the defendants under
the Right to Information Act clearly discloses that the society,
after being registered in the year 1991, has not filed any return
nor submitted any list of office bearers and thus has become
defunct.
c. A society which has become defunct cannot be permitted to
prosecute the suit on behalf of a deity. At any rate, by mere
production of Exts.A3 and A4 documents by itself will not show
that the plaintiffs 2 and 3 are the office bearers of the society.
d. Ext.B1 partition deed specifically mentions about the right of
management of the Komana Mana over the Kaninad temple.
Therefore, the 3rd defendant, being the eldest member of the
Komana Mana, was certainly entitled to execute Ext.A2
settlement deed by which the right of management alone is
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 15 2026:KER:14865
transferred.
e. It is incorrect to state that by virtue of the settlement deed,
the right title and interest over the plaint schedule property
stands transferred in the name of the 1st defendant. The 3rd
defendant still retains the authority to recall the entrustment of
the administration of the temple if it is found that the temple is
being administered improperly.
f. The oral testimony of PW1 would clearly show that the
administration of the temple is vested with Komana Mana. In
fact, PW1 had no case that the management of the temple was
with someone else. It is further contended that there is no
evidence to prove that there was an entrustment regarding the
administration of the temple with the Bharana Samithy as
claimed by the plaintiffs 2 and 3.
g. It is pointed out that after 3.12.2005, there was no meeting in
respect of the society and that at the time of filing of the suit in
the year 2009, no evidence was produced to show that the
plaintiffs 2 and 3 are the office bearers of the society.
h. Lastly, it is pointed out that, for the same relief, O.S. No.136
of 2007 was instituted before the Munsiff Court, Perumbavoor
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 16 2026:KER:14865
in which an application for amendment was filed. The
application was filed on 16.1.2009, on the same date, the
present suit was filed. The application for amendment was
allowed, the amendment was carried out and, thereafter, on
6.1.2010, the said suit was withdrawn without liberty to
prosecute the present suit, and thus the withdrawal of the
earlier suit constitutes as a bar to proceed with the present suit.
7. Per contra, Sri. Dinesh R. Shenoy, the learned counsel for the
plaintiffs/cross objectors, countered the submissions of the learned
Senior Counsel and raised the following submissions:
a. The 1st plaintiff temple is a public temple and therefore all
the worshipers have got the right to question the
maladministration at the hands of the defendants.
b. There is no evidence to show that the temple belonged to the
Komana Mana, over which the 3rd defendant claims to be the
eldest member.
c. The plaintiffs have produced Exts.A11 and A12 documents,
which show that, as per the revenue records, the plaint
schedule property lies in the name of the deity. Ext.B1 partition
deed will not confer any title on the members of the Komana
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 17 2026:KER:14865
Mana over which the 3rd defendant claims to be the eldest
member.
d. Ext.A2 document is executed through a power of attorney
holder, and the written statement in the suit was also filed by
him. In fact, the 3rd defendant has not come into the picture to
date in order to test the veracity of the document executed by
him. Therefore, the plaintiffs have every reason to believe that
Ext.A2 document was executed without the consent of the
eldest member of the Illam.
e. Referring to the additional documents produced along with
the cross objection under Order 41 Rule 27 of the Code of Civil
Procedure, the learned counsel pointed out that, going by the
settlement register, the temple vests with the 1st plaintiff/deity
and not with the Illam and therefore Ext.A2 has no efficacy of
law.
f. As regards the plea that the present suit is hit by Order 2 Rule
2 of the Code of Civil Procedure read with Order 23 Rule 4 of
the Code of Civil Procedure, it is pointed out that no issue was
framed regarding the bar of the present suit under Order 2
Rule 2 of the Code of Civil Procedure and therefore the
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 18 2026:KER:14865
appellants cannot raise the said plea for the first time in the
second appeal. In support of the said contention, the learned
counsel relied on the decision of the Supreme Court in
Gurbux Singh v. Bhooralal [1964 KHC 636 : AIR 1964 SC
1810].
g. It is further pointed out that O.S. No.136 of 2007 was based
on an entirely different cause of action altogether, and there is
no identity of the property. O.S. No.136 of 2007 was sought to
be withdrawn by filing I.A. No.40 of 2010, and the same was
granted as per the order dated 6.1.2010. Therefore, the learned
counsel submits that once a permission is granted under Order
23 Rule 1 of the Code of Civil Procedure, it is presumed that the
permission is granted to its entirety and not to a part. In
support of his contention, the learned counsel relied on the
decision of the Madras High Court in N. Iyyaswamy and
Another v. B.Padmini and Others [2o20 SCC OnLine
Madras 13418].
h. Since there was a dispute as regards whether the temple is
a public temple or a private temple, and that the appellants
assert that it is a private temple, the burden is on the appellants
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 19 2026:KER:14865
to prove that it is a private temple. Reliance is placed on the
decision of the Supreme Court in Jayaraman C.R. and
Others v. M. Palaniappan and Others [2009 KHC 4209
:2009 (3) SCC 425].
8. Shri. M.Narendrakumar the learned counsel for the appellant in
R.S.A. No.1280 of 2012 supported the arguments of learned Senior
Counsel for the appellant in R.S.A. No.1277 of 2012 and reiterated that by
virtue of Ext.A2 settlement deed, the right of management of the temple
alone is conveyed. It is further pointed out that the appellant/3rd
defendant retains the right to recall the entrustment of the management
of the temple in case it is found that the defendants 1 and 2 are not
administering the temple properly. It is further pointed out that if the
status of the plaintiffs 2 and 3 is changed to that of worshippers as
concluded by the first appellate court, the character of the suit itself
changes and will affect its maintainability. If the plaintiffs 2 and 3 intend
to maintain the suit purely in their status as devotees, then the relief
sought for declaration and consequential recovery must fail.
9. I have considered the rival submissions raised across the Bar and
perused the judgments rendered by the Courts below and the records of
the case.
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 20 2026:KER:14865
10. By order dated 13.2.2026, this Court has framed an additional
substantial question of law, which reads as under :
"Whether the present suit is hit by Order 2 Rule 2 as well as
Order 23 Rule 4 of the Code of Civil Procedure, 1908?"
11. This Court had given its reasons as to why the aforesaid question
of law is framed, especially since the records in this case indicate that
earlier suit and the present suit were for the same relief. Further, through
Ext.B6 application, an amendment was sought for questioning the validity
of Ext.A2 settlement deed and the amendment was allowed and the same
was carried out also. Pertinently, the present suit and the application for
amendment in the earlier suit were filed on the same day. Surprisingly,
the pendency of the earlier suit O.S. No.136 of 2007 is not disclosed in the
present suit.
12. That apart, having found that the plaintiffs 2 and 3 had not
produced any documents to substantiate their case that they are the office
bearers of the society, this Court wanted the respondents/plaintiffs to
state before this Court as to whether they intend to proceed with the
appeals as the office bearers of the society or as worshipers alone.
13. Today, when the matter was taken up for consideration, the
learned counsel for the respondents/cross objectors gave conflicting
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 21 2026:KER:14865
versions regarding the intention of the plaintiffs to move forward with the
case. Initially, the learned counsel for the respondents/plaintiffs-cross
objectors submitted that they will be satisfied if they are permitted to
proceed with the case as worshipers. However, during the course of his
argument, the learned counsel retracted from the above statement and
pointed out that what was intended by him is only to give up the right of
recovery of possession, but at the same time their entitlement to question
Ext.A2 settlement deed has not been given up. In light of the inconsistent
stand taken by the learned Counsel for the respondents/plaintiffs, this
Court is of the view that plaintiffs 2 and 3 are not certain as to the status
in which they intend to question Ext.A2 settlement deed. Therefore, this
Court felt that the incongruous stand taken by the plaintiffs 2 and 3 is fatal
to the cause projected by them.
14. In the above backdrop, this Court proceeds to consider the
respective contentions. First, this Court will consider whether plaintiffs 2
and 3 are officer bearers of the society. At the outset, this Court must
notice the fact that apart from a vague statement that the plaintiffs 2 and
3 are the office bearers of the registered society who manages the affairs
of the 1st plaintiff temple, no evidence is seen adduced by the plaintiffs to
prove the same. Exts.A3 and A4 minute books alone were produced before
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 22 2026:KER:14865
the trial court to show that a general body was convened during the
respective periods for the purpose of electing the office bearers of the
society. The trial court found that the minute books alone are not
sufficient. This Court does not find any reason to defer from the findings
of the trial court. The first appellate court also concurred with the above
findings, but then traversed beyond the scope of the appeal and went on
to hold that the plaintiffs had got a right as worshipers. The sustainability
of the said finding will be dealt with by this Court separately.
15. It is worthwhile to mention that during the course of the
argument, the learned counsel for the respondents fairly conceded before
this Court that, apart from Exts.A3 and A4 minute books, there is no other
evidence to prove that the plaintiffs 2 and 3 are the elected office bearers
of the society. But then, according to the learned counsel, there is nothing
under law which requires them to maintain a list of office bearers of the
society other than the minute books maintained in the normal course of
business.
16. This Court is afraid that it is not in a position to subscribe to the
contention raised by the learned counsel for the respondents/cross
objectors.
17. Admittedly, the Society is governed by the Travancore Cochin
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 23 2026:KER:14865
Literary, Scientific and Charitable Societies Act, 1955. Section 7 of the
Travancore Cochin Literary, Scientific and Charitable Societies
Registration Act, 1955 reads as under:
7. General meetings and minutes of proceedings of such meetings.--
(1) It shall be the duty of the governing body of a society to convene
the first general meeting of the society within 18 months from the date
of its registration and thereafter once at least in every calendar year
and not more than 15 months after the holding of the last proceeding
meeting.
(2). At the annual general meeting so held, election of members to the
governing body shall be made as provided for in the rules and
regulations of the society, provided the minimum number of persons
in the governing body shall be three.
(3). A list of the members of the first governing body of a society shall
be filed with the Registrar within fourteen days from the date of
registration of the society and thereafter the list of the governing body
shall be filed with the Registrar within fourteen days after the date of
the annual general meeting.
(4). Every society shall cause minutes of all proceedings of general
meetings to be entered in books kept for the purpose such minutes
shall be signed by the chairman of the meeting at which the
proceedings were held.
(5). If default is made in holding the annual general meeting, filing
the list of governing body or recording the minutes of proceedings of
general meetings as laid down in this section, the society and every
member of its governing body who is wilfully in default, shall be liable
to a fine (of twenty rupees for every day during which the default
continues, subject to a maximum of three hundred rupees).
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 24 2026:KER:14865
18. Sections 7(2) and 7(3) of the aforesaid Act are specific in
nature. A list of the office bearers of the society shall be prepared after
every Annual General Body Meeting, and the same shall be forwarded
to the Registrar. Though there is no procedure prescribed under the
Act by which the Registrar is to give his approval to the list, the
requirement of forwarding the list having been included in the Statute,
it presupposes that a list of office bearers of the society be drawn
annually and forwarded to the Registrar in order to ascertain the status
of the present office bearers.
19. Section 15 of the Travancore Cochin Literary, Scientific and
Charitable Societies Registration Act, 1955 also mandates such a
procedure, which reads as under:
15. Society to keep a register of members.--
(1) Every society shall have a register of its members wherein the
following particulars are entered:-
(a) the names and addresses and the occupation, if any, of the
members;
(b) the date of which each person became a member;
(c) the date on which any person ceased to be a member.
(2)If default is made in complying with the requirements of this
section, the society and every member of the governing body who
knowingly and wilfully authorises or permit the default, shall be
liable to a fine not exceeding twenty rupees for every day during
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 25 2026:KER:14865
which the default continues, subject to a maximum of three
hundred rupees.
20. Sections 7 and 15, when read in cumulative, lead to an irresistible
conclusion that the requirement to furnish the list of office bearers of a
society cannot be dispensed with, and it is futile to contend that the Act
does not contemplate furnishing such a list. Admittedly, no such list is
produced in this case, and hence the concurrent findings of the courts
below that the plaintiffs 2 and 3 are not the office bearers of the society do
not call for any interference.
21. Once the status of the plaintiffs 2 and 3 has been clearly spelt
out, the framework of the suit must necessarily fall. It must be
remembered that the first plaintiff is being described as a deity, and the
plaintiffs 2 and 3 are seeking themselves to represent the deity. It is trite
law that the deity is a perpetual minor. If that be so, either of the plaintiffs
2 and 3 ought to have applied for appointing them as a next friend of the
1st plaintiff deity in an application under Order 32 Rule 1 of the Code of
Civil Procedure, 1908.
22. When this infirmity was pointed out by the court, the learned
counsel for the respondents submitted that under Order 32 Rule 2 of the
Code of Civil Procedure, an application ought to have been filed by the
defendants to get back the plaint from the files of the court. In the absence
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 26 2026:KER:14865
of such an application, according to the learned counsel, there is an
implied grant of permission by the trial court. This Court is afraid that it
cannot subscribe to the said argument. Though it is possible to hold that
the deity could be represented by a worshipper as a next friend, in case the
shebait acts against the interest of the idol, in the present case, such a
situation does not arise for consideration, especially since the plaintiffs 2
and 3 proceeded on an assumption that they are entitled to represent the
deity as a matter of right. The moment it has come out in evidence that the
plaintiffs 2 and 3 miserably failed to prove that they are the office bearers
of the society, the entire edifice based on which the suit has been framed
should fail.
23. Insofar as the question whether the 3rd defendant has any right
to execute Ext.A2 settlement deed, one must turn back to Ext.B1 partition
deed. In Ext.B1 partition deed, there is a clear indication that the
management of the temple is vested with the Illom. When Ext.B1 is read
along with the oral testimony of PW1, wherein he had clearly admitted
that the management of the temple is vested with the Illom, no further
deliberation is required. Hence, as the eldest member of the family, the
3rd defendant was clearly empowered to entrust the management of the
temple to the defendants 1 and 2.
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 27 2026:KER:14865
24. Despite this, the learned counsel for the respondents asserted
before this Court that, going by Exts.A11 and A12 revenue records, it is
evident that the plaint schedule property stands in the name of the deity.
Placing further reliance on the settlement records produced along with
Cross Objection as additional documents, the learned counsel submitted
that reference to Ext.B1 by the courts below is improper. On an anxious
consideration of the submission, this Court finds that the revenue records
will not confer any title and therefore, reliance placed on revenue records
is misplaced. Moreover, this Court finds no reason to accept the additional
evidence before this Court.
25. Having concluded that the management of the temple does not
vest with the plaintiffs 2 and 3, the larger question before this Court is
whether the plaintiffs 2 and 3 could question the said entrustment under
Ext.A2. The argument raised on behalf of the plaintiffs is that because they
are the worshipers of the temple, they are entitled to maintain a suit. No
doubt, a worshiper of the temple is entitled to question the
maladministration of the temple. But then, it must be remembered that
the framework of the present suit is such that there is no averment that
the suit is sought to be sustained on the ground that they are the
worshippers of the temple. Midway through the consideration of the suit,
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 28 2026:KER:14865
when it is found out that the plaintiffs 2 and 3 have no right to represent
the deity, they cannot be permitted to shift their stand and contend that
the suit be maintained as though they are the worshippers.
26. Equally so, this Court cannot accept the argument of the learned
counsel for the respondents/plaintiffs that the temple in question is a
public temple. In fact the question as to whether the temple is a public
temple or not is not an issue to be called for in the present suit. Merely
because the public is allowed to worship in a temple is not a criteria to
hold that the temple is a public temple. At any rate, no evidence is seen
adduced in this regard, and therefore, this Court is not persuaded to go
into the said question.
27. Moreover, as against Ext.B1, there is no contra evidence adduced
by the plaintiffs. But, having failed throughout, a fervent attempt is made
at the second appellate stage through an application under Order 41 Rule
27 of the Code of Civil Procedure to produce additional documents.
Having found that the additional documents cannot be accepted, it is
inevitable for this Court to find that there is no contra evidence adduced
by the plaintiffs.
28. Next, it is to be considered whether Ext.A2 conveys the right
title and interest over the property. Read as may, this Court could not find
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 29 2026:KER:14865
any clause under Ext.A2 which confers the right title and interest over the
plaint schedule property in favour of the defendants 1 and 2. The
defendants are in unison in their submissions before this Court that the
3rd defendant had not intended to convey any title over the plaint schedule
property in favour of the defendants 1 and 2.
29. Moreover, a reading of Ext.A2 shows that a right to recall the
management is reserved with the 3rd defendant. Therefore, this Court is of
the considered view that if, in any case, the 3rd defendant finds that there
is mismanagement, he is entitled to recall Ext.A2 settlement deed. In such
circumstances, the first appellate court went beyond its jurisdiction in
declaring Ext.A2 as null and void.
30. An incidental question that requires to be addressed by this
Court is whether the present suit as such is maintainable. O.S. No.136 of
2007 was instituted by the plaintiffs for the very same relief. The pleadings
in the earlier suit are available on record as Exts.B5 and Ext.B6. However,
both sides were not sure about the ultimate outcome of the suit. In view
of the above, this Court felt it expedient to call for the records relating to
O.S. No.136 of 2007 in order to ascertain what exactly happened to the
suit. From the records forwarded by the Munsiff Court, Perumbavoor, it
is seen that the suit was permitted to be withdrawn by Judgment dated
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 30 2026:KER:14865
6-1-2010.
31. The plaintiffs had sought liberty to proceed with the present suit
while seeking permission to withdraw the suit. It appears from the
Judgment in O.S. No.136 of 2007 that though permission to withdraw the
suit with liberty was sought for, the same appears not to have been
granted. On request of the learned counsel for the respondents, copies of
the petition to withdraw the suit, the judgment rendered in O.S. No.136 of
2007 were directed to be served by order dated 13-2-2026. Counsels for
both sides have received the copies.
32. Extensive arguments were addressed by learned counsel for the
respondents/plaintiffs on the applicability of the provisions of Order 2
Rule 2 read with Order 23 Rule 4 of the Code of Civil Procedure. Ext.B5 is
the plaint in O.S. No.136 of 2007, and Ext.B6 is the copy of the
amendment petition filed in the same. When the cause of action for filing
the earlier suit as well as the present suit is closely scrutinised, it is
evidently clear that the cause of action is one and the same.
33. In fact, the most intriguing fact is that the amendment was
sought on 16.1.2009, the same date on which the present suit was
instituted. The amendment was allowed and thereafter carried out. After
the amendment was carried out, the relief sought for in O.S. No.136 of
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 31 2026:KER:14865
2007 and O.S. No.25 of 2009 are one and the same. At this point, the
plaintiffs filed I.A. No.40 of 2010 in O.S. No.136 of 2007 for withdrawing
O.S. No.136 of 2007 with liberty to proceed with O.S. No.25 of 2009. A
reading of Judgment dated 6.1.2010, in O.S. No.136 of 2007, shows that
I.A. No.40 of 2010 stands allowed and the suit stands dismissed as
withdrawn. However, it is seen that no liberty was granted to the plaintiffs.
34. Faced with the situation, the learned counsel for the
respondents submitted that the court has no option to permit a part
withdrawal. Either the court must permit withdrawal as a whole or reject
the same. Once the application for withdrawing the suit is allowed, the
liberty is deemed to have been granted for the purpose of filing a fresh
suit. This Court finds force in the submission of the learned counsel for
the respondents. Therefore, the additional substantial question framed by
this Court is answered in favour of the respondents.
35. However, that by itself will not lead to the conclusion that the
plaintiffs are entitled to succeed. Only since the defendants raised a
question regarding the maintainability of the suit, this Court thought it fit
to address the suit.
36. Coming back to findings rendered by the first appellate court,
it is surprising to note that notwithstanding the fact that the plaintiffs
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 32 2026:KER:14865
failed to prove that they are the office bearers of the society and that there
is no evidence to show that beyond 17.12.2005, there was no election to
the office bearers of the society, still the appellate court found that, they
are entitled to succeed based on the claim that they are the worshippers of
the temple cannot be sustained under any circumstances.
37. A perusal of the grounds mentioned in the memorandum of
appeal before the first appellate court shows that no such plea was taken.
Therefore, on what basis the first appellate court formed an opinion that
the plaintiffs 2 and 3 can institute the suit based on the status as
worshippers remains to be seen.
38. Moreover, assuming that the claim of plaintiffs 2 and 3 as
worshippers could be sustained, then the reliefs sought for, for a
declaration and recovery of possession, must necessarily fail. Though the
learned counsel for the respondents/plaintiffs conceded that they do not
want a recovery of possession, that by itself will not enable them to sustain
the plea of declaratory relief. The relief No.A claimed in the plaint reads
as under:
"A. അന്യായപട്ടികയിൽ വിവരിക്കുന്ന കാണിന്ാട് ശ്രീഭഗവതി വക
വസ്തുവകകളെ സംബന്ധിച്ച് ജന്ിപ്പിച്ചിട്ടുള്ള പുത്തൻകുരിശ്
സശ്ബജിസ്ശ്രാറിളെ 17.01.2006 ളെ 461-)0 ന്മ്പർ ആധാരം null and void
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 33 2026:KER:14865
ആളണന്നും വാദികളെ ബന്ധിക്കുന്നതളെെന്ന് സ്ഥാപിച്ചു
വിധിയുണ്ടാകണം."
39. A perusal of the above relief shows that they have sought for a
declaration that document No.461/1 of 2006 of SRO, Puthencruz, is not
binding upon plaintiffs 2 and 3. When this relief is juxtaposed with the
status of plaintiffs 2 and 3 as claimed in the plaint, it is inevitable for this
Court to hold that the relief can only be granted qua the status of plaintiffs
2 and 3 as the office bearers of the society.
40. The moment the plaintiffs 2 and 3 downgrade themselves to
that of worshippers, the challenge to Ext.A2 must fail at this very
inception. It is pertinent to note that the right of a worshiper to institute a
suit for the administration of a temple is no longer res integra.
41. In M. Siddiq (Dead) through legal representatives
(Ram Janmabhumi temple case) vs. Mahant Suresh Das and
Others [2020(1) SCC (1)], the Supreme Court considered the rights of
a worshipper to maintain a suit questioning the administration of the
temple.
Paragraph Nos.457 and 455 of the judgment are extracted herein as
under:
"455. A suit by a worshipper in their personal capacity
cannot however canvass the range of threats the idol may face at
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 34 2026:KER:14865
the hands of negligent shebait and it may be necessary for the
court to permit the next friend to sue on behalf of the idol itself
to adequately protect the interests of the idol. For example, where
a shebait fails to file a suit for possession on behalf of a deity, a
suit by a worshipper in their personal capacity is inadequate.
Rather, what is required is a suit by a next friend on behalf of the
idol for the recovery of possession of the property. It is true that
possession will not be delivered to the next friend. However, the
court can craft any number of reliefs, including the framing of a
scheme upon an application by the Advocate General or two
persons under Section 92 of the Civil Procedure Code, 1908, to
ensure that the property is returned to the idol. Where the
inaction or mala fide action of the shebait has already been
established, such a scheme may be the appropriate remedy,
however this will necessarily depend on the facts and
circumstances of every case.
xxx
457. This, however, brings us to the second question
whether allowing a next friend to sue on behalf of the idol puts
the idol at risk. The idol and its properties must be protected
against the threat of a wayward "next friend". Where the shebait
acts in a mala fide manner, any person claiming to be a "next
friend" may sue. Such a person may in truth have intentions
hostile to the deity and sue under false provenance. Even a well-
intentioned worshipper may sue as a next friend and purely due
to financial constraints or negligence lose the suit and adversely
bind the deity. A solution offered by Pal, J. in Tarit Bhusan Rai
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 35 2026:KER:14865
vs. Sri Sri Iswar Sridhar Salagram Shila Thakur [1941
SCC OnLine Cal 107 : AIR 1942 Cal 99] and urged by Dr Dhavan
in the present proceedings, is that only court appointed next
friends may sue on behalf of the idol. No doubt this would satisfy
the court that the next friend is bonafide and can satisfactorily
represent the deity.
42. At any rate, in the nature of averments in the present suit, there
is nothing to indicate that the defendants 1 and 2 are not administering
the temple properly. The first appellate court had unfortunately failed to
notice the crucial aspect as regards the sustainability of the prayer in the
suit when the status of the plaintiffs 2 and 3 was changed. This essential
difference, having gone unnoticed by the first appellate court, is
susceptible for interference under Section 100 of the Code of Civil
Procedure 1908.
43. Resultantly, this Court is of the view that the substantial
questions of law framed by this Court are required to be answered in
favour of the appellants as follows:
RSA No 1277 of 2012.
1. The first appellate court was not justified in reversing the decree
passed by the trial court by placing reliance on the revenue records
when there were enough materials to conclude that the management
of the temple was vested with the Namboothiri Illam.
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 36 2026:KER:14865
2. The first appellate court was not justified in reversing the trial court
decree when Ext.B1 partition deed reveals that the Kaninadu
Bhagavathi temple and surrounding properties are being managed
by Komana Mana, admittedly a Namboothiri Illam.
3. The first appellate court went wrong in granting a declaration that
Ext.A2 is invalid when the temple is a private temple.
RSA 1280 of 2012.
1. When there is an admission in Ext.B2 that the Kaninadu Sree
Bhagavathi temple is a temple belonging to the Komana mana,
the finding of the first appellate court that the plaint schedule
temple does not belong to the Komana mana is not sustainable.
2. When there is a clear indication in Ext.B1 which is conclusive to
hold that the temple in question is a private temple of the
Komana mana, namely, the setting apart of the substantial
properties of the illom for the 'nithya nidanam' and
'adiyanthirams' of these temples and the founder illom
retaining control and management of these temples to be
exercised continuously by the illom and its descendants from
time to time in the manner specified in Ext.B1, finding to the
contrary is unsustainable.
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 37 2026:KER:14865
3. Ext.A11, thandaper account and Ext.A12, basic tax register for
the site of the plaint schedule temple, cannot confer title of the
plaint schedule property on the deity.
4. The plaintiffs 2 and 3 have locus standi to file the suit for
declaration that alienation of temple property is invalid as
worshipers, since the suit is filed by plaintiffs 2 and 3 not in their
capacity as worshipers and this claim being not founded on
pleading and as such not entertainable and also
5. in any view not available in the case of a private temple.
6. The plaintiffs 2 and 3 are not competent to represent the 1st
plaintiff deity and file the suit on its behalf, the temple and deity
being private properties of the Komana mana, and in the
absence of permission being sought under Order 32 Rule 1 of
CPC.
7. Ext.A2 is valid and within the competence of the 3rd defendant,
the temple being a private temple of the Komana mana and the
3rd defendant being the competent authority to manage the
temple as per the provisions in Ext.B1.
44. Coming to the Cross Objection, it must be noted that the Cross
Objection is solely based on the refusal of the first appellate court to grant
R.S.A. No.1277 of 2012 &
& R.S.A. NO.1280 OF 2012 38 2026:KER:14865
recovery of possession. Since the learned counsel for the Cross Objectors
has conceded before this Court that the respondents/cross objectors do
not want the relief for recovery of possession to be pressed, this Court
finds that there is no requirement to deal with the respective contentions
in the Cross Objection.
45. Resultantly, finding that no substantial question of law arises
for consideration in the Cross Objection, the Cross Objection is dismissed.
46. In fine, on the basis of the discussions above, and also the
answers given to the questions of law framed in the appeals, this Court is
of the view that the judgment of the Sub Court, Perumbavoor, in A.S.
No.23 of 2011 cannot be sustained. Accordingly, these appeals are allowed
by reversing the judgment and decree in A.S. No.23 of 2011 on the files of
the Sub Court, Perumbavoor and restoring the judgment and decree in
O.S. No.25 of 2009 to the files of the Munsiff Court, Perumbavoor. The
appellants are entitled to costs throughout.
Ordered accordingly.
Sd/-
EASWARAN S.
JUDGE
NS
