Kerala High Court
Palamangalam Krishnan Namboodiri vs State Of Kerala
Author: Anu Sivaraman
Bench: Thottathil B.Radhakrishnan, Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE ACTING CHIEF JUSTICE MR.THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938
OP.No. 10605 of 1999 (K)
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PETITIONER(S):
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PALAMANGALAM KRISHNAN NAMBOODIRI,
RESIDING AT BELLIKOTH IN AJANOOR VILLAGE,
P.O. AJANOOR, HOSDURG TALUK,
KASARAGOD DISTRICT (DIED)
ADDITITIONAL PETITIONER:
P.VASUDEVAN NAMBOOTHIRI, PALAMANGALAM ILLAM,
BELLIKOTH, AJANOOR,
KAMANAGAR (VIA),
KASARAGOD DISTRICT
(SENIORMOST MEMBER OF THE PETITIONER'S FAMILY)
ADDITIONAL PETITIONER IS IMPLEADED AS PER ORDER
DATED 4.6.2009 IN I.A.NO.6326/09.
BY ADVS.SRI.GOVIND K.BHARATHAN (SR.)
SRI.SURESH KUMAR KODOTH
SRI.SURESH KUMAR KODOTH
RESPONDENT(S):
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1. STATE OF KERALA, REPRESENTED BY
THE DEPUTY SECRETARY TO GOVERNMENT,
REVENUE (DEVASWOMS) DEPARTMENT,
THIRUVANANTHAPURAM.
2. THE COMMISSIONER H.R. & C.E.,
(ADMN) DEPARTMENT, CIVIL STATION,
KOZHIKODE.
3. THE ASSISTANT COMMISSIONER, HR & CE,
(ADMN) DEPARTMENT, KASARAGOD DISTRICT,
KANHANGAD P.O., HOSDURG TALUK,
KASARAGOD DISTRICT.
OP.No. 10605 of 1999
-2-
4. PALAMANGALAM VASUDEVAN NAMBOODIRI,
RESIDING AT KANNOTH, CHEMNAD VILLAGE,
P.O.PARAVANADKA, KASARAGOD TALUK,
KASARAGOD DISTRICT.
ADDL. 5. P.VISHNU NAMBOODIRI,
S/O.VASUDEVAN, PALAMANGALATHAYA,
AGED 55 YEARS, RESIDING AT PUTHIKAI VILLAGE,
UPPILIKAI POST, HOSDURG TALUK,
KASARAGOD DISTRICT.
ADDL. R5 IS IMPLEADED AS PER ORDER DATED 19.7.99
IN CMP.20368/99.
R1 BY SR.GOVERNMENT PLEADER SRI.RENJITH
R2 AND R3 BY SRI.K.R.SUNIL, SC, MDB
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON
21-06-2016, ALONG WITH RFA. 223/2006, WPC. 12844/2010, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
OP.No. 10605 of 1999
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: COPY OF ENGLISH TRANSLATION OF THE REGISTERED PARTITION
DEED DATED 27.3.1908.
EXHIBIT P2: COPY OF ORDER G.O.(Rt).NO.1071/99/RD DATED 20.3.1999 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P3A: COPY OF APPLICATION DATED 2.3.1999 FILED BEFORE THE SUB
COURT, KASARAGOD.
EXHIBIT P3B: COPY OF APPLICATION DATED 1.2.1999 FILED BEFORE THE 1ST
RESPONDENT BY THE PETITIONER.
RESPONDENTS' EXHIBITS:
ANNEXURE-A: COPY OF JUDGMENT IN M.F.A.
/TRUE COPY/
PS TO JUDGE
THOTTATHIL B.RADHAKRISHNAN, Ag.CJ.
&
ANU SIVARAMAN, J.
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O.P.No. 10605 of 1999,
R.F.A.No. 223 of 2006
&
W.P(C).No. 12844 of 2010
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Dated this the 21st June, 2016
JUDGMENT
Any Sivaraman,J.
The matter in issue in this original petition and the regular first appeal is with regard to the right to ownership and administration of Thalakalayi Sree Subramanya Temple and Kannoth Sree Vishnu Temple in Kasargod District. The original petition as well as the appeal were filed by one Palamangalam Krishnan Namboodiri, who died during the pendency of these matters. Sri.P.Vasudevan Namboodiri has been impleaded as the supplementary petitioner and supplementary appellant in both the matters consequent on the death of the original appellant/petitioner.
2. W.P(C).No. 12844 of 2010 is filed by the Malabar Devaswom Staff Union alleging maladministration of the temple by the trustees and seeking direction to the respondents to enforce Exhibit P2 circular containing directions for administration of the temples under the Malabar Devaswom Board and for allied reliefs.
3. It is the contention of the appellant that the temples in question which was situated in Chemnad Village in Kasargod District OP.10605/99 & connected cases 2 originally belonged to an undivided Hindu family known as the 'Palamangalamthaya Family'. By a partition deed dated 27.3.1908, an English translation of which is produced as Exhibit P1, it is stated that the right to ownership of the Thalakalayi Sree Subramanya Temple and Kannoth Sree Vishnu Temple, which belonged to the family exclusively, was left in common and the properties were also set apart for the purpose of the temple. Arrangements for proper administration of the temple have also been made. Thereafter, it is stated that Palamangalam Vasudevan Namboodiri, who was the eldest member of the family at that time, had applied for appointment as non-hereditary trustee under the Malabar Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred to as 'the Act') on a misapprehension of fact and law. When renewal of such appointment was declined and an executive officer was appointed in terms of the Act, the said order was challenged by Vasudevan Namboodiri before the Commissioner and when the appeal was dismissed, a suit, O.S.No.109 of 1983, was filed before the Sub Court, Kasaragod. The relief in the suit was to set aside the orders of the Deputy Commissioner and the Commissioner in appeal and to hold that the plaintiff was the hereditary trustee of the OP.10605/99 & connected cases 3 Thalakalayi Sree Subramanya Temple and for a consequential relief of permanent prohibitory injunction restraining the defendant from taking over the management of the temple. The suit was decreed entering a finding that the Thalakalayi Sree Subramanya Temple was a private temple which belongs to the plaintiff's family and that the removal of the plaintiff from the possession of the trustee was illegal and no proceedings under Section 45 of the Act were initiated. The Commissioner and Assistant Commissioner, HR & CE took the matter in appeal and judgment dated 1.11.1995 was rendered by a Division Bench of this Court in MFA.No. 256 of 1987. It was held therein that there was no prayer in the plaint for a declaration that the temple belongs to the plaintiff's family, but the court below had entered such a finding. The contention of the plaintiff, on the other hand, was that he was the hereditary trustee of the temple and the appointment as non hereditary trustee was a mistake which was liable to be corrected. This Court found that the question decided by the Deputy Commissioner being whether the plaintiff held office as a hereditary trustee is a matter to be decided under Section 57 of the Act. However, this Court went on to hold that Section 93 of the Act acts as a bar for consideration of the issue OP.10605/99 & connected cases 4 in question by a civil court and therefore the remedy available to the plaintiff was to approach the Government in revision under Section 99 against the order of the Commissioner.
4. In revision, the petitioner in the original petition as well as another male member of the family were impleaded as additional respondents and they raised contentions regarding ownership. By Government order dated 20.3.2190, the Government decided that the temples in question are public temples and that they have been included in the schedule to the Act. This order is under challenge in the original petition. In the meanwhile, Palamangalam Krishnan Nambmoodiri has preferred O.S.No.42 of 1998 before the Sub Court, Kasaragod for a declaration that the temples in question belong to the family of the plaintiff and 1st defendant absolutely and that they are entitled to management of the same as their family temples. On the reasoning that this contention had already been given up by the plaintiff in O.S.No.109 of 1983, which was recorded by a Division Bench of this Court in MFA.No.286 of 1987, the court below dismissed O.S.No.42 of 1998 which has resulted in the filing of the Regular First Appeal.
OP.10605/99 & connected cases 5
5. Heard Sri.Govindh K.Bharathan, Senior Counsel appearing for the appellant in RFA and petitioner in O.P, learned Government Pleader appearing for the State and the learned Standing Counsel appearing for the Malabar Devaswom Board as well as the learned counsel for the party respondents.
6. The question which remains for consideration is whether the temple in question is a public temple coming under the general superintendence and control of the HR & CE Department which, by operation of law, has become the Malabar Devaswom Board. The court below in considering O.S.No.42 of 1998 proceeded on the basis that the question as to whether the temples are private temples or not already stands concluded by the judgment of this Court in MFA No.286 of 1987. It is stated therein that though the Sub Court in its judgment in O.S.No.109 of 1983 has entered a finding that the temples in question are private temples belonging exclusively to the family of the plaintiff therein. However, when the appeal was being argued, it appears that the said contention was given up by the learned counsel for the plaintiff who was the respondent before this Court in the MFA. It is stated that the reliefs sought in the suit were only for a declaration that the plaintiff was OP.10605/99 & connected cases 6 the hereditary trustee of the temple and that the department was not entitled to take over the management of the temple from him. This was the factual basis on which MFA. 286 of 1987 was decided. This Court had found that the suit before the Sub Court was not maintainable and that the plaintiff had to take up the matter in revision before the Government under Section 99 of the Act. The question which was relegated to the Government for decision in revision was, therefore, as to whether the plaintiff was a hereditary trustee of the temple and not as to the nature of ownership rights of the temple.
7. The Government as well as the court below proceeded on the assumption that the admission by Palamangalath Vasudevan Namboodiri before this Court that the temples were subject to the supervision and control of the department under the Act sealed the issue and that no further consideration was required in respect of the same. As a matter of fact, it was the consistent case of the plaintiff in O.S.No.42 of 1998 as well as the other members of the family that the admission by Palamangalath Vasudevan Namboodiri as regards the nature of the rights of the family over the temples was not binding on them. It was their further contention that the OP.10605/99 & connected cases 7 superintendence and control exercised by the erstwhile HR & CE Department over the temples was a result of collusion between the said Vasudevan Namboodiri and the officers of the department.
8. On going through the pleadings and materials on record, we are of the definite view that the finding in the judgment in MFA.286 of 1987 to the effect that the temple is a public temple under the Act can have no binding effect on the plaintiff in O.S.No.42 of 1998 or his successors-in-interest or even on the other members of the family to the exclusion of Sree Vasudevan Namboodiri and his legal heirs . This is more so, because none of the members of the family were made party either to O.S.No.109 of 1983 or the appeal arising therefrom. Notice of the proceedings of the Department was also not served on them even in a representative capacity. In the above view of the matter, it is clear that the question of ownership rights of the temple is a question which is raised by parties but which remains undecided.
9. The Act extends to the whole of Malabar District and applies to all Hindu Public Religious Institutions and Endowments. 'Religious institution' as defined in Section 6(15) of the Act is a math, temple or specific endowment. A 'temple' is defined in Section 6(17) of the OP.10605/99 & connected cases 8 Act as a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of or used as of right by the Hindu Community or any section thereof, as a place of public religious worship. Section 57(1) of the Act provides that the question whether an institution is a religious institution is one to be decided under the Act. There is no definition of the term 'public temple' in the Act. The claim that a temple is not an institution coming under the ambit of the Act is, therefore, not a question which can be agitated under the provisions of the Act. If that be so, the bar of jurisdiction under Section 93 of the Act would not apply to a suit for declaration that the temples in question are in the exclusive ownership of the family to which the petitioners belong. In other words, the question whether the temple is a private temple is to be agitated before the Civil Court. The Civil Court has evidently not gone into this question which was pointedly raised before it.
In the above circumstances, we are of the opinion that the question raised by the appellant in the RFA is to be decided by the Sub Court, Kasaragod afresh without reference to the findings in the judgment of this Court in the MFA. The judgment impugned in OP.10605/99 & connected cases 9 R.F.A.No.223/2006 is therefore set aside. The suit is remanded to the Sub Court, Kasaragod for fresh consideration of the issue of ownership rights to the temple on the basis of what is stated above. The contentions of the parties in this regard are left open. Further proceedings pursuant to the order impugned in O.P.No.1065 of 1999 shall be subject to final orders in the said suit. A representative of the employees of the temple can also seek impleadment in the suit and in case such an application is filed, it shall be considered in accordance with law by the Sub Court. Parties are directed to mark their appearance before the Sub Court, Kasaragod on 7.9.2016.
The original petition, regular first appeal and the writ petition are ordered accordingly.
THOTTATHIL B.RADHAKRISHNAN ACTING CHIEF JUSTICE ANU SIVARAMAN JUDGE vgs